In 1989 there was neither divorce nor a modern system of judicial separation. Divorce a Mensa et Toro was an old procedure that might be granted where it was shown that one party to the marriage was at fault, having committed adultery, cruelty (physical or mental) or “unnatural practices”.
Its effect was to relieve the parties of the technical obligation to live together. Limited orders for alimony and custody could be made, and the ‘guilty’ spouse would be deprived of the right of succession.
The parties remain married. In practice, the jurisdiction was only available to persons who could afford High Court proceedings.
Judicial Separation Order
Judicial separation was introduced by 1989 legislation, pursuant to a private members bill promoted by Alan Shatter after the failure of the 1986 divorce referendum. At that time, the Constitution prohibited the enactment of laws allowing for divorce. The 1989 legislation essentially allowed for no-fault judicial separation.
A judicial separation formalises separation but does not give the right to remarry. Apart from the absence of the right to remarry, many of the provisions of the judicial separation and divorce legislation are similar.
Once an order for judicial separation is made, the court has jurisdiction to make the various ancillary orders. Many of the same provisions regarding division of assets, maintenance, custody and guardianship are the same or are very similar in the case of judicial separation and divorce.
It is possible to apply for judicial separation after one year’s separation – or, in some cases, earlier – and to later apply for divorce. The orders made on judicial separation may be varied or new orders may be made.
There are certain types of matters which require a court order. In these cases, even where the parties agree to separate, court orders may be necessary. This is the position in respect of the dissolution of marriage in itself. Orders are also often required in relation to pension adjustments.
Reconciliation or Agreement
The legislation seeks to encourage the parties to enter a separation agreement and to resolve differences in so far as possible by agreement. Mediation is encouraged. There is a specific requirement before proceedings are issued that the solicitor issuing and defending them first:
- discuss the possibility of reconciliation and provide the names and addresses of persons qualified to help effect a reconciliation;
- discuss the possibility of engaging in mediation to help effect a separation on an agreed basis and provide the names and addresses of persons and organisations qualified to provide mediation services; and
- discuss the possibility of effecting a separation by negotiation and a written deed or written separation agreement.
The commencement of legal proceedings must be accompanied by a certificate by the solicitor that this has been done.
The solicitor acting for the respondent has similar obligations. The entry of appearance to the proceedings must be accompanied by the same certificate.
If the certificates are not filed, the court may adjourn the proceedings to allow for the discussion of these possibilities. Furthermore, the court may, in any application for judicial separation, give consideration to the possibility of a reconciliation of the spouses concerned and may adjourn the proceedings for these purposes. It may afford the spouses an opportunity if they so wish to consider a reconciliation with or without the assistance of a third party.
If the parties commence living together again, no account is taken of that for the purpose of the proceedings. Where, in an application for a judicial separation, it appears to the court that no reconciliation is possible, it may adjourn the proceedings for the purposes of affording the spouses the opportunity if they both wish to establish an agreement with or without the assistance of a third party. Either or both spouses may request a hearing to proceed.
An oral or written communication between either of the spouses concerned and a third party for the purpose of seeking assistance to effect a reconciliation or to reach an agreement between them on some or all of the terms of a separation (whether or not made in the presence or with the knowledge of the other spouse), as well as any record of such a communication, made or caused to be made by either of the spouses concerned or such a third party, are not admissible as evidence in any court.
Where the court grants a decree of judicial separation, it shall no longer be obligatory for the spouses who were the parties to such proceedings to cohabit.
Perhaps the most significant effect of a decree of judicial separation is that it opens the doors to a range of ancillary orders similar to those applicable in divorce proceedings. The court has the power to grant various types of orders and the basis upon which the discretion may be exercised is set out in separate chapters.
The existence of the wide court powers and the relevant criteria set the backdrop and context in which the parties may agree to a separation agreement. The court will wish the parties to agree to the matters in so far as possible. If nothing is agreed upon, the judicial separation or divorce proceedings may effectively impose a solution.
Following the granting of a decree of judicial separation, the applicant and the respondent in the separation proceedings may, at any future date by consent, apply to the court to rescind the decree of separation granted.
Such order of rescission may be made by the court upon it being satisfied that a reconciliation has taken place between the applicant and the respondent and that they have already resumed or again wish to resume cohabiting as spouses of each other. The court may also make such necessary ancillary order or orders as it deems proper in the circumstances with regard to any orders previously made.
An order for judicial separation may be made on one or more of the following grounds:
- that the respondent has committed adultery;
- that the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent;
- that there has been desertion by the respondent of the applicant for a continuous period of at least one year immediately preceding the date of the application;
- that the spouses have lived apart from one another for a continuous period of at least one year (three years before the 2019 Act) immediately preceding the date of the application;
- that the marriage has broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application.
One of the grounds must be proved on the balance of probabilities. Alternative grounds may be claimed.
Spouses are treated as living apart from each other unless they are living with each other in the same household. It is possible in some circumstances for spouses to be separated where they effectively live in separate households under the same roof. This may occur where there is no joint interaction. There may be a separation of lives. It would not suffice if this is done for commercial or health reasons. There should be an intention to live apart.
Case law provides examples of separation where parties live apart under a single roof. The focus is on the division of households. In some cases, where the parties lived together for the sake of the children, the courts held that they were not living apart. Other cases placed less emphasis on physical separation and more on the psychological and social elements of separation. There is both an objective and subjective aspect.
The Marriage Act 2019 provided that spouses who live in the same dwelling as one another shall be considered as living apart from one another if the court is satisfied that, while so living in the same dwelling, the spouses do not live together as a couple in an intimate and committed relationship. A relationship does not cease to be intimate merely because it is no longer sexual in nature.
The court must also be satisfied where there are dependent children of the family that proper provision exists, has been made or will be made by order for their welfare. Welfare includes religious and moral, intellectual, physical and social welfare of the children concerned.
Upon the granting of a decree of judicial separation by the court, the court may, where appropriate, by order, give such directions under the Guardianship of Infants Act as it thinks proper regarding the welfare or custody of, or right of access to, an infant (under 18 years) as if an application had been made under that Act.
Reliance on the adultery ground may be based on circumstantial evidence or admitted facts.
In the case of adultery, where the parties have lived together for more than a year after it became known to the applicant that the respondent had committed adultery, the applicant may no longer rely on the adultery ground. Adultery may be one of the factors that need to be relied on for the purposes of the second ground (cannot reasonably be expected to live with the respondent).
Unreasonable To Stay
The matter of whether the applicant can reasonably be expected to live with their spouse is considered from the applicant’s perspective. The ground may be made out notwithstanding that one applicant is more vulnerable to being affected by the misbehaviour than another. In this context, behaviour need not be the fault of the other spouse. However, it must emanate from the other spouse.
Where the applicant alleges that the respondent has behaved in such a way that the applicant cannot reasonably be expected to cohabit with him, but the spouses have cohabited for a period or periods after the date of the occurrence of the final incident relied on by the applicant and held by the court to support his allegation, such cohabitation shall be disregarded in determining whether the applicant can be reasonably expected to live with the respondent if the length of the period or of those periods of cohabitation together was or were 6 months or less.
Desertion has a particular meaning in this context which was well developed under earlier legislation. Desertion involves leaving the other partner without ‘consent’. Therefore when parties separate by mutual consent, the ground does not apply.
Consent may be express or implied. Non-protest does not necessarily imply consent. A separation agreement is a clear consent. Consent may also be inferred from behaviour.
Physical separation by itself is insufficient. There must be an intention to live separately and apart. Separating for business or health requirements would not suffice by itself.
There can be desertion by the remaining partner. So called constructive desertion includes conduct on the part of one spouse that results in the other spouse, with just cause, leaving and living apart from that other spouse. The conduct must generally be serious. Desertion has particular consequences in relation to the reliefs that might otherwise be granted. It implies an element of fault.
In considering the period for which the respondent has deserted the applicant and the periods for which spouses have lived apart, there is deemed to be continuity if there is one or more periods not exceeding six months or six months in total during which the spouses resumed living with each other, provided they were living apart at the time of the application.
In practice, the fifth and sixth (now the fourth and fifth grounds) grounds are most commonly relied on:
- That the spouses have lived apart from one another for a continuous period of at least one year (formerly three years) immediately preceding the date of the application;
- That the marriage has broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application.
A normal marital relationship implies mutual consent and shared responsibility. It implies a continued emotional and psychological relationship and continued consent to the marriage.