When parties cannot reach agreement as to the terms by which they will separate, then an application to court is required for a judicial separation.
As is the case in all family law matters, a judicial separation case is heard in camera ( in private) and is brought in either the Circuit Court or the High Court depending on the assets of the individuals involved.
A judicial separation decree confirms that a couple no longer live together as a married couple but the court can also rule on access, custody, maintenance, property , succession rights, pensions etc as part of the application.
Under current legislation there are six grounds for an application to court for a judicial separation:
- The respondent has committed adultery
- The respondent has behaved in a manner in which you cannot reasonably be expected to live with them .
- The respondent has deserted for a continuous period of one year
- The couple has lived apart for a period of over one year and the respondent consents to the application.
- The couple have lived apart for a period of over 3 years
- The marriage has broken down to the extent that the court is satisfied that a normal marital relationship has not existed for a period of one year
Once it is established that one of these grounds exist the court will also look to be satisfied that the couple have been advised regarding counselling and mediation as an alternative and that proper provision has been made by all dependents. In particular the welfare of any children are of utmost concern to the court.
One question we are often asked by clients is : Why Judicial separation instead of a divorce?. To apply for a divorce, you must be separated for four out of the previous five years and so a judicial separation allows you to put arrangements in place until that timeframe has been met.