What happens when couples can’t agree on terms of separation?

When a marriage has broken down and agreement can’t be reached by mediation, negotiation or collaborative law, then the only option available to couples who need to regularise their affairs is to go to court. “Judicial Separation” is the name given to a separation when it is decided by a Judge in the Courts. Following this route, an application is made to Court under the following legislation: The Judicial Separation and Family Law Reform Act 1989 and the Family Law Act 1995.

In general, application is made to the Circuit Court, but in certain high value asset cases, application will be made to the High Court. If the application is to be made to the Circuit Court, then the parties must apply to the Circuit Court area in which they live or work.

In general, you will need to engage a Barrister as well as a Solicitor to deal with the Circuit Court application for Judicial Separation. The client will meet first with the Solicitor who will arrange a meeting with the Barrister and then the application papers will be drafted. Once papers are served on the other spouse the process begins. Then a series of legal documents are exchanged.

Basic Judicial Separation Documents explained:

• Family Law Civil Bill – this document comprises a summary of the Applicant’s case, which is usually a brief history of the circumstances of the marriage and the breakdown of the marriage, together with the claim of the Applicant and a list of the Orders which the applicant is seeking from the Court.
• Affidavit of Means – this document sets out a full and detailed listing of the assets, income, debts and liabilities, expenditure requirements and pension details of the person swearing the affidavit. This document must be vouched with receipts to prove all items declared.
• Affidavit of Welfare – this document relates to the dependent children of the parties and comprises a series of questions relating to their living arrangements, education requirements, health and other matters including current access arrangements and financial arrangements.
• Section 5 or Section 6 Certificate – under Irish law it is incumbent upon each Solicitor to advise his or her client as to the options available to them by way of reconciliation services, mediation or alternative dispute resolution methods and all other methods available to reach agreement save application to Court. Each Solicitor must certify that a client has been provided with this advice when representing them in Court.
• Entry of Appearance – this document is filed by the responding spouse and/or his Solicitor to acknowledge and accept receipt of documents and to confirm that they will be participating in proceedings.
• Defence and Counterclaim – this comprises the response of the other spouse (Respondent) to the Equity Civil Bill and application of the Applicant as detailed above. It sets out the other spouse’s version of events and details their claim to Court.

Each party will provide and swear an Affidavit of Means and Affidavit of Welfare.

As part of the process it is also open to the Court to order Discovery. This is a process by which each person provides usually 3-5 years worth of financial documents, which depending on the circumstances of the case, may cover such items as bank statements, loan statements, P60’s and payslips, company accounts, business accounts, etc. Discovery may not necessary in every case, but is needed where there is a lack of financial transparency.

An application for Judicial Separation can take some time to process and various and many Interim Applications can be made along the way, for example it may be necessary for access with children to be regulated, or that provision be made for financial support, i.e. maintenance, pending the final hearing of the action. Each case is different and each client can only be advised depending upon their own circumstances. One solution does not fit all, and it is important that you retain a Solicitor who listens effectively to your priorities.

Once all the documents are in place and complete, application will be made for a hearing date. It very much depends upon the Circuit Court area involved, as to how long the wait period will be for a hearing date to be allocated and individual advice should be sought in this regard.

If you need advice or support on any of the issues raised above, please call Alan Finnerty on 01 637 6200. Or you can email him at alan.finnerty@orpenfranks.ie

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.