We advise all our clients that they should only consider entering into a Deed of Separation or seeking a Judicial Separation as an absolute last resort. Every effort should be made to try and resolve the difficulties that have arisen in the marriage and quite often it is possible to resolve these difficulties.
We advise all our clients when they come to us that as a first step they should seek counselling or attend many of the organisations that provide excellent conflict resolution and counselling services.
We have established links with a number of bodies, who we can strongly recommend and who we know provide an excellent service to couples who are experiencing difficulties in their relationship.
Mediation is a process that assists people in dispute and helps them reach their own agreement. We would strongly recommend that in many cases the services of an experienced mediator should be used to facilitate this process. An expert mediator can help the parties reach their own agreement and thus avoid an extremely lengthy and often very expensive and traumatic legal case. We are happy to recommend a number of companies and individuals who have expertise in this area. The decision to go to mediation is an extremely critical decision and you should use a mediator you either know personally or who has been strongly recommended to you either by another professional such as us, or somebody you know and trust
Quite often a relationship is in difficulties because conflict has arisen and it has not been managed properly. Again we are happy to recommend certain professional firms who have impressed us with the manner in which they deal with conflict resolution. Again, you should go with someone who either we can recommend or who you know to be expert and trusted.
Unfortunately there are many cases where it is not possible to reconcile the differences that have arisen in a relationship and separation is unfortunately inevitable. Hopefully it will be possible to negotiate the terms of a settlement through mediation but if it is not, then we are happy to advise clients concerning the completion of a separation agreement. The main benefit of concluding a separation agreement is that you can avoid a lengthy and often divisive court hearing and a separation agreement is just as legally binding as a court order.
The main matters covered in a separation agreement are first of all the agreement to separate and live apart. The other main matters covered are:
- Guardianship, access and custody of children.
- Maintenance and financial provisions.
It should be noted that where you enter into a separation agreement with your spouse, you generally cannot subsequently issue legal proceedings seeking a judicial separation. Having said that, it is always open to either spouse to bring an application to review maintenance payments both for the other spouse and for any children and similarly neither party can be prevented from bringing an application to deal with issues in relation to custody, access or guardianship.
Although completing a separation agreement may prevent you making an application for a judicial separation, it will not prevent you making an application for a divorce. The law concerning separation agreements and subsequent divorce proceedings on paper is relatively clear. The separation agreement is binding on the parties but if either one of them seeks a divorce, then the court should have regard to the terms of a separation agreement but fundamentally the court has to be satisfied that proper provision has been made for all relevant parties before they will grant an order for divorce. The law at present states that the court should assess assets at the date of the divorce although the court will also take into account the provisions of any separation agreement and will also take into account the fact that assets may have been acquired subsequent to the separation and may have been acquired due to the other spouse’s sole efforts.
The definition of “proper provision” at the date of divorce has been hotly contested over the years and the case law in this particular area is developing all the time. Many spouses believe that simply because they are married automatically entitles them to 50% of everything their spouses owns. This is not strictly correct but in practice this does often happen
Q. If I enter into a Separation Agreement and I subsequently become unhappy with the terms of the agreement, can I issue judicial separation proceeding?
A. No. Provided all the legal formalities have been complied with, the Separation Agreement is binding. Having said that, matters in relation to maintenance and children are always open to review and it is also open to you to issue divorce proceedings.
Q. If my Separation Agreement says that it is binding on both parties in the event that divorce proceedings issue, can the provisions of the agreement be reviewed during those divorce proceedings?
A. Yes – a court will not make a divorce order without being satisfied that full and proper provision has been made for all parties but will obviously take into account the provisions of a separation agreement.
Q. How much will it cost and how long will it take?
A. We have completed basic uncontested Separation Agreements for €1,500 to €2,000 but generally there will be a degree of negotiation and difficulties often arise. An average fee would be in the region of €4,000 plus VAT. The quickest Separation Agreement we completed was in less than a week. Normally an agreement would be negotiated over approximately three months but circumstances will always dictate.