When a marriage or relationship breaks down, and a couple decides to live apart, they need to actively plan their new future apart. Separation and divorce throw up so many things to consider. Who will have custody of the children? Will we keep or sell the family home? How will we divide up our assets?

What Is The Difference Between Separation And Divorce?

A Legal Separation can regulate all of the issues between a couple when marriages breakdown. A Divorce will do the same. However, the key differences are that after Divorce

  • a person can remarry, and
  • the issues are harder to revisit and to change

With separations, you can choose a legally binding separation agreement or go to court and seek a Judicial Separation. Either form will define the terms of your separation, in terms of issues like finance, children and living arrangements.

Unlike divorce, there is no waiting period required for legal separation proceedings. A couple can enter a Separation Agreement at any time after their separation.

If you are married, you will probably need to go through both separation and divorce. Currently, married couples in Ireland must wait 2 years before they can apply to the courts to initiate divorce proceedings. Because this leaves them in limbo over key areas like custody, maintenance and financial assets, most couples will begin separation proceedings in the interim.

However, a legal separation will not change your marital status. You may be living separately but you’ll remain married in the eyes of the law until your divorce is finalised. A decree of divorce can only be granted by the courts.

How Do You Apply For A Legal Separation?

Ideally, you are your partner can negotiate your own separation by means of a Separation Agreement. The agreement will need to set out terms to cover areas such as:

  • Custody,
  • Access, and Guardianship of children;
  • Maintenance of spouse and/or children;
  • Division of property and other assets;
  • Pension Provision;
  • Inheritance Rights.

If the separating partners parties are unable to agree matters, then they can seek a separation by Order of the Court.  Whichever route you choose, each partner will need independent legal advice to protect their interests and those of any children.

How Do You Apply For A Divorce?

The couple will apply to the courts for a Divorce Decree, but they must meet certain conditions.  For example, the court must be satisfied that the spouses have lived apart for at least 2 of the previous 3 years. It also states that there must be no prospect of reconciliation. Thirdly, the court must be satisfied that proper provision has been made for any dependent members of the family.

If the couple already has a separation agreement, the court can use this as the basis for ruling on areas like custody, maintenance and financial assets. If not, the court will examine and rule on these issues.

Once issued, a divorce decree is irreversible and allows each person to remarry. However, either ex-partner can apply to court to have any orders made under the decree, such as maintenance or access, reviewed by the court.

General Advice On Separation and Divorce

In both Separation and Divorce, the key issues to be determined remain the same. They will centre around the children, if any, of the marriage. They will also focus on dividing financial and property assets (including the family home) in a way that provides for all parties. If there is a family business, company or farm, you or the courts will need to make decisions about this as well.

In general, separation and divorce proceedings will include terms to provide for custody & access, maintenance, assets, pension provision and inheritance.

For both Separation and Divorce, it is better if the couple tries to agree the terms of their relationship breakdown if at all possible. A Separation Agreement or a Consent Divorce can be drawn up.  A Court Order is often a very blunt instrument. Reaching agreement affords greater creativity, flexibility and control.  Securing the right legal advice can help you get the best outcome, either reaching agreement or in court proceedings.

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

Useful Links

Citizens Information:
Separation and Divorce – read here
Divorce Decrees – read here

Legal Aid Board:
Separation – read here

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

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