JS Issues

Challenge to Judicial Separation

A challenge was taken to the judicial separation legislation as being inconsistent with the Constitution’s former prohibition of divorcee (pre-1995). It was argued that the one-year separation period did not allow sufficient time for reconciliation and undermined the Constitutional protection of the institution of marriage.

The challenge was rejected in the High Court and the Supreme Court. Supreme Court held that in the context, where the spouses were separated, their marriage had broken down and they no longer consented to cohabitation. It held that judicial separation was permissible under the Constitution. The legislations attempted to protect the family after marriage breakdown and the provisions did not constitute a failure by the State to protect the institution of marriage against attack.

Separation Agreements & JS

A couple who have entered a separation agreement may not seek a judicial separation if they have already separated under the separation agreement. Where the separation agreement comprehensively resolved the issues, it was held to be a bar to judicial separation proceedings.

Where a full and final separation agreement is entered in judicial separation, it may in effect be varied on divorce. However the courts will take the separation agreement into account and it will often be the factor of great importance.

Weight

In some cases, great weight is given to the separation agreement. However, later circumstances post-separation and pre-divorce may radically alter the position. In those cases, the courts may still be reluctant to allow extensive variations. The more long-standing the separation agreement, the greater the weight likely to be given to it.

Little or no weight is attached to court of full and final settlement agreements in relation to  children. The issue of the welfare and maintenance of children can be revisited and is not capable of being crystallised in a separation agreement.

A separation agreement entered with full knowledge and consent should be given sufficient weight. It is a significant factor. If circumstances have not changed, the provision provided for will generally remain proper provision. If they have changed significantly, the court must consider all the circumstances, but it is not necessarily required to redistribute wealth. The change may be in terms of needs or resources.

Courts are less likely to revisit relatively recent separation agreements, which are reasonable and which are intended to be full and final settlement. A  variation based on a change in circumstances caused by the applicant spouse’s behaviour or imprudent actions, is unlikely to be allowed.

The factors to be considered include the length of time since the separation agreement. The longer the time that has passed, the less likely the court will be to alter the agreement.

Variations during Financial Crisis

Proper provision generally requires that the spouse has, where possible, enough assets to provide alternative accommodation and have a proper level of maintenance.

The courts during the financial crisis permitted variations of property adjustment orders where one partner’s spouse’s assets, income and ability to service debt had been radically affected by the financial or in particular property market collapse.

Although separation agreements freely entered are to be enforced, courts considered that it may be appropriate to contemplate a variation order to reflect new events. A property adjustment order under the Family Law Act 1995 cannot be varied but a new order can be made. Accordingly, a property adjustment order could be made.

Judicial Separation & Succession

Judicial separation does not terminate a spouse’s legal rights on succession. Divorce, by definition, do so as the parties are no longer spouses.

The parties may renounce their succession rights. This is commonly done in a separation agreement.

The court, on the application of either spouse on making a judicial separation order or anytime thereafter, may make an order extinguishing the share to which either spouse will be entitled in the estate of the other. The court may make an order where it is satisfied that adequate and reasonable provision has or can be made for the spouse whose rights are affected.

Right to Apply on Death

Where the spouse’s rights have been extinguished by judicial separation, there exists a special right by which the other spouse may apply to court within six months of the grant of representation for an order for provision from the estate.

The court may make provisions from the estate in such circumstances as it considers appropriate. The court must have regard to all the circumstances, including lump sum orders and the property adjustment orders made in favour of the applicant’s spouse as well as any benefits contained in the will of the deceased spouse.

The amount granted may not exceed the legal right share or share in intestacy, which would have applied, had the original order not been made.

Criteria

Before making an order, the court must take account of the interests of persons having an interest. The court must be satisfied that provision was not made for the applicant during the lifetime of the deceased by way of maintenance, financial compensation, property adjustment or other order.

Conduct is not relevant. The application may not be made where the applicant has remarried since the date of the order.

Where the deceased had remarried, the applicant must give notice to the new spouse of the application. The court must have regard to any representations made by persons entitled to notice. The notice must also be given to such other persons as the court may consider appropriate.

Duties of Personal Representative

The personal representative of the deceased spouse in respect of whom judicial separation order has been made must make reasonable attempts to bring the death to the notice of the other spouse. Where an application is made, the personal representative must not take steps to administer the estate until the court has made an order.

Where the personal representative has given notice of the death to either spouse, that other spouse must, it he or she intends to make an application for an order, within one month of notice notify the personal representative of the intention to apply for an order and of the order. If he or she does not do so, the personal representative may distribute the assets without regard to such application or order.

The spouse concerned may trace or follow the assets concerned into the hands of any beneficiaries to whom it is distributed without having given such notice. The personal representative is protected to the above extent.

Disapplication

When an application for judicial separation is made or anytime thereafter during the life of both spouses, either may apply the court to disapply the above provision.

Although divorce terminates the legal right share of spouses, there is a provision equivalent to the above provision in respect of judicial separation in the case of divorce. Similar criteria apply.

On the granting of a divorce on the application of either party, an order may be made, disapplying of the rights of the other spouse. The right does not apply where the other spouse remarries.