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What is a Separation Agreement?
A Separation Agreement is a written document executed by the parties to a marriage, where that marriage has broken down, and where the couple do not wish to employ the Courts to settle the terms of the separation.
Before a solicitor can assist a party to a marriage in drawing up and executing such a Separation Agreement, a solicitor, pursuant to Sections 5 and 6 of the Judicial Separation and Family Law Reform Act 1989, is under an obligation to discuss with the client:
The terms of a Separation Agreement invariably deal with the guidance and custody of children; maintenance; property; succession; pensions and so on.
One should also note that an executed Separation Agreement can be made a Rule of Court provided the Agreement contains a provision relating to maintenance payments. If the Agreement is made a Rule of Court, the person paying the maintenance must pay it through the District Court Clerk therefore the District Court Clerk will remain abreast of any default in the maintenance payments.
Finally, one very important point to note regarding Separation Agreements is that once you have executed a valid Separation Agreement, you cannot thereafter have go to the Courts in order to obtain a Judicial Separation. However, a Separation Agreement does not act as a barrier to Divorce Proceedings.
What is a Judicial Separation?
A Judicial Separation is an Order granted by the Courts where the spouses fail to agree the terms of a Separation Agreement, ordering that the spouses are thereafter separated.
As with a Separation Agreement, the solicitors for both parties are under legal obligations pursuant to Sections 5 and 6 of the Judicial Separation and Family Law Reform Act 1989, to discuss with the client, before taking or defending Judicial Separation proceedings:
On what grounds can a Judicial Separation be granted?
The Judicial Separation and Family Law Reform Act 1989 sets out that a Judicial Separation can be granted on six grounds:
Once a Court has decided that one of the six grounds exists, there are two further conditions that must be satisfied before it will grant an Order of Judicial Separation: firstly, the welfare of any dependant children of the marriage must be properly catered for and secondly, solicitors of the applicant and the defendant must have complied with their legal obligations as outlined above.