{"id":20802,"date":"2022-11-27T14:58:26","date_gmt":"2022-11-27T14:58:26","guid":{"rendered":"https:\/\/legalblog.ie\/?p=20802"},"modified":"2024-03-12T22:16:55","modified_gmt":"2024-03-12T22:16:55","slug":"judicial-separation","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/judicial-separation\/","title":{"rendered":"Judicial Separation"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><ul class='ez-toc-list-level-3' ><li class='ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/judicial-separation\/#Background\" title=\"Background\">Background<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/judicial-separation\/#Judicial_Separation_Order\" title=\"Judicial Separation Order\">Judicial Separation Order<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/judicial-separation\/#Reconciliation_or_Agreement\" title=\"Reconciliation or Agreement\">Reconciliation or Agreement<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/judicial-separation\/#Adjournment\" title=\"Adjournment\">Adjournment<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/judicial-separation\/#Post-Order\" title=\"Post-Order\">Post-Order<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/judicial-separation\/#Revocation\" title=\"Revocation\">Revocation<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/judicial-separation\/#Grounds\" title=\"Grounds\">Grounds<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/judicial-separation\/#Separation\" title=\"Separation\">Separation<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/judicial-separation\/#Children\" title=\"Children\">Children<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/judicial-separation\/#Adultery\" title=\"Adultery\">Adultery<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-11\" href=\"https:\/\/legalblog.ie\/judicial-separation\/#Unreasonable_To_Stay\" title=\"Unreasonable To Stay\">Unreasonable To Stay<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-12\" href=\"https:\/\/legalblog.ie\/judicial-separation\/#Desertion\" title=\"Desertion\">Desertion<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-13\" href=\"https:\/\/legalblog.ie\/judicial-separation\/#Non-Fault_Grounds\" title=\"Non-Fault Grounds\">Non-Fault Grounds<\/a><\/li><\/ul><\/li><li class='ez-toc-page-1 ez-toc-heading-level-2'><a class=\"ez-toc-link ez-toc-heading-14\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#JUDICIAL_SEPARATION_AND_FAMILY_LAW_REFORM_ACT_1989\" title=\"JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989\">JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989<\/a><ul class='ez-toc-list-level-4' ><li class='ez-toc-heading-level-4'><ul class='ez-toc-list-level-4' ><li class='ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-15\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Definition\" title=\"Definition.\">Definition.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-16\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Application_for_a_decree_of_judicial_separation\" title=\"Application for a decree of judicial separation.\">Application for a decree of judicial separation.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-17\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Grant_of_decree_of_judicial_separation_custody_etc_of_children\" title=\"Grant of decree of judicial separation, custody, etc. of children.\">Grant of decree of judicial separation, custody, etc. of children.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-18\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Supplemental_provisions_as_to_proof_of_adultery_and_unreasonable_behaviour\" title=\"Supplemental provisions as to proof of adultery and unreasonable behaviour.\">Supplemental provisions as to proof of adultery and unreasonable behaviour.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-19\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Safeguards_to_ensure_applicants_awareness_of_alternatives_to_separation_proceedings_and_to_assist_attempts_at_reconciliation\" title=\"Safeguards to ensure applicant&#8217;s awareness of alternatives to separation proceedings and to assist attempts at reconciliation.\">Safeguards to ensure applicant&#8217;s awareness of alternatives to separation proceedings and to assist attempts at reconciliation.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-20\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Safeguards_to_ensure_respondents_awareness_of_alternatives_to_separation_proceedings_and_to_assist_attempts_at_reconciliation\" title=\"Safeguards to ensure respondent\u2019s awareness of alternatives to separation proceedings and to assist attempts at reconciliation.\">Safeguards to ensure respondent\u2019s awareness of alternatives to separation proceedings and to assist attempts at reconciliation.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-21\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Adjournment_of_proceedings_to_assist_reconciliation_or_agreements_on_separation\" title=\"Adjournment of proceedings to assist reconciliation or agreements on separation.\">Adjournment of proceedings to assist reconciliation or agreements on separation.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-22\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Non-admissibility_as_evidence_of_certain_communications_relating_to_reconciliation_or_separation\" title=\"Non-admissibility as evidence of certain communications relating to reconciliation or separation.\">Non-admissibility as evidence of certain communications relating to reconciliation or separation.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-23\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Effect_of_judicial_separation_and_rescission_of_decree_of_separation_and_ancillary_orders_upon_reconciliation\" title=\"Effect of judicial separation and rescission of decree of separation and ancillary orders upon reconciliation.\">Effect of judicial separation and rescission of decree of separation and ancillary orders upon reconciliation.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-24\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Abolition_of_decree_of_divorce_a_mensa_et_thoro_etc\" title=\"Abolition of decree of divorce a mensa et thoro, etc.\">Abolition of decree of divorce a mensa et thoro, etc.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-25\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Court_Jurisdiction\" title=\"Court Jurisdiction\">Court Jurisdiction<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-26\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Definition_Part_III\" title=\"Definition (Part III).\">Definition (Part III).<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-27\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Courts_jurisdiction_and_venue\" title=\"Courts, jurisdiction and venue.\">Courts, jurisdiction and venue.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-28\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Hearing_of_proceedings\" title=\"Hearing of proceedings.\">Hearing of proceedings.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-29\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Conduct_of_family_proceedings_in_Circuit_and_High_Courts\" title=\"Conduct of family proceedings in Circuit and High Courts.\">Conduct of family proceedings in Circuit and High Courts.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-30\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Privacy\" title=\"Privacy.\">Privacy.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-31\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Costs\" title=\"Costs.\">Costs.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-32\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Rules_of_court\" title=\"Rules of court.\">Rules of court.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-33\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Saver_for_existing_law\" title=\"Saver for existing law.\">Saver for existing law.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-34\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Amendment_of_sections_5_and_6_of_Family_Law_Maintenance_of_Spouses_and_Children_Act_1976\" title=\"Amendment of sections 5 and 6 of Family Law (Maintenance of Spouses and Children) Act, 1976.\">Amendment of sections 5 and 6 of Family Law (Maintenance of Spouses and Children) Act, 1976.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-35\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Discharge_of_orders_under_Family_Law_Maintenance_of_Spouses_and_Children_Act_1976\" title=\"Discharge of orders under Family Law (Maintenance of Spouses and Children) Act, 1976.\">Discharge of orders under Family Law (Maintenance of Spouses and Children) Act, 1976.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-36\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Reports_on_children_in_guardianship_cases\" title=\"Reports on children in guardianship cases.\">Reports on children in guardianship cases.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-37\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Custody_of_dependent_children\" title=\"Custody of dependent children.\">Custody of dependent children.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-38\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Amendment_of_section_120_2_of_Succession_Act_1965\" title=\"Amendment of section 120 (2) of Succession Act, 1965.\">Amendment of section 120 (2) of Succession Act, 1965.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-39\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Divorce_a_mensa_et_thoro_decrees_and_alimony_orders\" title=\"Divorce a mensa et thoro decrees and alimony orders.\">Divorce a mensa et thoro decrees and alimony orders.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-40\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Collusion_condonation_recrimination_connivance\" title=\"Collusion, condonation, recrimination, connivance.\">Collusion, condonation, recrimination, connivance.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-41\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Conduct_of_District_Court_family_proceedings\" title=\"Conduct of District Court family proceedings.\">Conduct of District Court family proceedings.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-42\" href=\"https:\/\/legalblog.ie\/judicial-separation\/2\/#Short_title_and_commencement\" title=\"Short title and commencement.\">Short title and commencement.<\/a><\/li><\/ul><\/li><\/ul><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Background\"><\/span>Background<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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) \u00a0or \u201cunnatural practices\u201d.<\/p>\n<p>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 &#8216;guilty&#8217; spouse would be deprived of the right of succession.<\/p>\n<p>The parties remain married. In practice, the jurisdiction was only available to persons who could afford High Court proceedings.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Judicial_Separation_Order\"><\/span>Judicial Separation Order<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>It is possible to apply for judicial separation after one year\u2019s separation &#8211; or, in some cases, earlier &#8211; and to later apply for divorce. The orders made on judicial separation may be varied or new orders may be made.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Reconciliation_or_Agreement\"><\/span>Reconciliation or Agreement<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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:<\/p>\n<ul>\n<li>discuss the possibility of reconciliation and provide the names and addresses of persons qualified to help effect a reconciliation;<\/li>\n<li>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<\/li>\n<li>discuss the possibility of effecting a separation by negotiation and a written deed or written separation agreement.<\/li>\n<\/ul>\n<p>The commencement of legal proceedings must be accompanied by a certificate by the solicitor that this has been done.<\/p>\n<p>The solicitor acting for the respondent has similar obligations. The entry of appearance to the proceedings must be accompanied by the same certificate.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Adjournment\"><\/span>Adjournment<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Post-Order\"><\/span>Post-Order<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Revocation\"><\/span>Revocation<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Grounds\"><\/span>Grounds<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>An order for judicial separation may be made on one or more of the following grounds:<\/p>\n<ul>\n<li>that the respondent has committed adultery;<\/li>\n<li>that the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent;<\/li>\n<li>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;<\/li>\n<li>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;<\/li>\n<li>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.<\/li>\n<\/ul>\n<p>One of the grounds must be proved on the balance of probabilities. Alternative grounds may be claimed.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Separation\"><\/span>Separation<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Children\"><\/span>Children<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Adultery\"><\/span>Adultery<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Reliance on the adultery ground may be based on circumstantial evidence or admitted facts.<\/p>\n<p>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).<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Unreasonable_To_Stay\"><\/span>Unreasonable To Stay<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The matter of whether the applicant can reasonably be expected to live with their spouse is considered from the applicant&#8217;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.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Desertion\"><\/span>Desertion<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Desertion has a particular meaning in this context which was well developed under earlier legislation. Desertion involves leaving the other partner without &#8216;consent&#8217;. Therefore when parties separate by mutual consent, the ground does not apply.<\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Non-Fault_Grounds\"><\/span>Non-Fault Grounds<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In practice, the fifth and sixth (now the fourth and fifth grounds) grounds are most commonly relied on:<\/p>\n<ul>\n<li>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;<\/li>\n<li>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.<\/li>\n<\/ul>\n<p>A normal marital relationship implies mutual consent and shared responsibility. It implies a continued emotional and psychological relationship and continued consent to the marriage.<\/p>\n<p><!--nextpage--><\/p>\n<h2>JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989<\/h2>\n<p>REVISED<\/p>\n<p>Updated to 1 August 2022<\/p>\n<p>AN ACT TO AMEND THE GROUNDS FOR JUDICIAL SEPARATION: TO FACILITATE RECONCILIATION BETWEEN ESTRANGED SPOUSES: TO PROVIDE FOR THE MAKING OF ANCILLARY ORDERS IN SEPARATION PROCEEDINGS: TO AMEND THE LAW RELATING TO THE COURTS&#8217; FAMILY LAW JURISDICTION AND TO PROVIDE FOR CONNECTED MATTERS. [19th April, 1989]<\/p>\n<p>BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:<\/p>\n<p>Annotations<\/p>\n<p>Modifications (not altering text):<\/p>\n<p>C1<br \/>\nCost of mediation or counselling services declared to be in the discretion of the court (27.02.1997) by Family Law (Divorce) Act 1996 (33\/1996), s. 43, commenced as per s. 1(2).<\/p>\n<p>Cost of Mediation and Counselling Services<\/p>\n<p>43.\u2014The cost of any mediation services or counselling services provided for a spouse who is or becomes a party to proceedings under this Act, the Act of 1964 or the Act of 1989 or for a dependent member of the family of such a spouse shall be in the discretion of the court concerned.<\/p>\n<p>C2<br \/>\nPower provided to Court to make order regarding application of Family Home Protection Act 1976 (27\/1976), s. 3(1), when granting decree under Act (1.08.1996) by Family Law Act 1995 (26\/1995), s. 54(3), S.I. No. 46 of 1996.<\/p>\n<p>Amendment of Family Home Protection Act, 1976, and Act of 1989.<\/p>\n<p>54. \u2014 &#8230;<\/p>\n<p>(3) Where a court, when granting a decree of judicial separation under the Act of 1989, orders that the ownership of the family home shall be vested in one of the spouses, it shall, unless it sees reason to the contrary, order that section 3(1) (prior consent of spouse to conveyance of interest in family home) of the Family Home Protection Act, 1976 , shall not apply to any conveyance by that spouse of an interest in the home and, if the court so orders, the said section 3(1) shall have effect accordingly.<\/p>\n<p>C3<br \/>\nPower of court to procure reports in family law proceedings extended (1.08.1996) by Family Law Act 1995 (26\/1995), s. 47(1) and (6), S.I. No. 46 of 1996; as amended (27.02.1997) by Family Law (Divorce) Act 1996 (33\/1996), s. 52(p), commenced as per s. 1(2); and as amended (1.01.2005) by Health Act 2004 (42\/2004), s. 75 and sch. 6 part 13, S.I. No. 887 of 2004.<\/p>\n<p>Social reports in family law proceedings.<\/p>\n<p>47.\u2014(1) In proceedings to which this section applies, the court may, of its own motion or on application to it in that behalf by a party to the proceedings, by order give such directions as it thinks proper for the purpose of procuring a report in writing on any question affecting the welfare of a party to the proceedings or any other person to whom they relate from\u2014<\/p>\n<p>(a) such probation and welfare officer (within the meaning of the Child Abduction and Enforcement of Custody Orders Act, 1991) as the Minister for Justice may nominate,<\/p>\n<p>[(b) such person nominated by the Health Service Executive specified in the order as the Health Service Executive may nominate, being a person who in its opinion is suitably qualified for the purpose, or]<\/p>\n<p>(c) any other person specified in the order.<\/p>\n<p>&#8230;<\/p>\n<p>(6) [This section] applies to proceedings\u2014 &#8230;<\/p>\n<p>(f) under the Act of 1989,<\/p>\n<p>&#8230;<\/p>\n<p>C4<br \/>\nRights of spouses under Act confirmed not affected (1.08.1996) by Family Law Act 1995 (26\/1995), s. 48, S.I. No. 46 of 1996.<\/p>\n<p>Property of engaged couples.<\/p>\n<p>48.\u2014For the avoidance of doubt, it is hereby declared that the reference in section 5 (1) of the Family Law Act, 1981, to the rules of law relating to the rights of spouses in relation to property in which either or both of them has or have a beneficial interest shall relate and be deemed always to have related only to the rules of law for the determination of disputes between spouses, or a claim by one of them, in relation to the beneficial ownership of property in which either or both of them has or have a beneficial interest and, in particular, does not relate, and shall be deemed never to have related, to the rules of law relating to the rights of spouses under the Act of 1965, the Family Home Protection Act, 1976, the Act of 1989 or this Act.<\/p>\n<p>Editorial Notes:<\/p>\n<p>E1<br \/>\nProceedings under Act included in definition of family law proceedings (1.01.2018) by Mediation Act 2017 (27\/2017), s. 2(1), S.I. No. 591 of 2017.<\/p>\n<p>PART I<\/p>\n<p>The obtaining of a Decree of Separation<\/p>\n<h4>Definition.<\/h4>\n<p>1.\u2014In this Act, except where the context otherwise requires\u2014<\/p>\n<p>\u201cthe court\u201d means the court having jurisdiction under Part III of this Act.<\/p>\n<h4>Application for a decree of judicial separation.<\/h4>\n<p>2.\u2014(1) An application by a spouse for a decree of judicial separation from the other spouse may be made to the court having jurisdiction to hear and determine proceedings under Part III of this Act on one or more of the following grounds:<\/p>\n<p>(a) that the respondent has committed adultery;<\/p>\n<p>(b) that the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent;<\/p>\n<p>(c) subject to subsection (2) of this section, 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;<\/p>\n<p>(d) subject to subsection (2) of this section, that the spouses have lived apart from one another for a continuous period of at least one year immediately preceding the date of the application F1[\u2026];<\/p>\n<p>(e) F1[\u2026]<\/p>\n<p>(f) 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.<\/p>\n<p>(2) In considering for the purposes of subsection (1) of this section, whether\u2014<\/p>\n<p>(a) in the case of paragraph (c) of that subsection, the period for which the respondent has deserted the applicant, or<\/p>\n<p>(b) in the case of paragraph (d) F1[\u2026] of that subsection, the period for which the spouses have lived apart,<\/p>\n<p>has been continuous, no account shall be taken of any one period (not exceeding 6 months) or of any two or more periods (not exceeding 6 months in all) during which the spouses resumed living with each other, but no such period or periods during which the spouses lived with each other shall count as part of the period of desertion or the period for which the spouses have lived apart, as the case may be:<\/p>\n<p>Provided that this subsection shall only apply where the spouses are F2[living apart from one another] at the time the application is made.<\/p>\n<p>(3) F2[(a) For the purposes of this section\u2014<\/p>\n<p>(i) 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, and<\/p>\n<p>(ii) a relationship does not cease to be an intimate relationship merely because it is no longer sexual in nature.]<\/p>\n<p>(b) In this section \u201cdesertion\u201d 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.<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F1<br \/>\nDeleted (1.12.2019) by Family Law Act 2019 (37\/2019), s. 2(1)(a)(i), (ii), (b)(i), S.I. No. 585 of 2019, subject to transitional provision in subs. (2).<\/p>\n<p>F2<br \/>\nSubstituted (1.12.2019) by Family Law Act 2019 (37\/2019), s. 2(1)(b)(ii), (c), S.I. No. 585 of 2019, subject to transitional provision in subs. (2).<\/p>\n<h4>Grant of decree of judicial separation, custody, etc. of children.<\/h4>\n<p>3.\u2014(1) Where, on an application under section 2 of this Act, the court is satisfied that any of the grounds referred to in subsection (1) of that section which have been relied on by the applicant have been proved on the balance of probabilities, the court shall, subject to subsection (2) of this section and sections 5 and 6 of this Act, grant a decree of judicial separation in respect of the spouses concerned.<\/p>\n<p>(2) (a) Where there are, in respect of the spouses concerned, any dependent children of the family, the court shall not grant a decree of judicial separation unless the court\u2014<\/p>\n<p>F3[(i) is satisfied that such provision exists or has been made, or]<\/p>\n<p>(ii) intends by order upon the granting of the decree to make such provision,<\/p>\n<p>for the welfare of those children as is proper in the circumstances.<\/p>\n<p>(b) In this subsection\u2014<\/p>\n<p>\u201cdependent children of the family\u201d has the same meaning as it has for the purposes of Part II of this Act;<\/p>\n<p>\u201cwelfare\u201d comprises the religious and moral, intellectual, physical and social welfare of the children concerned.<\/p>\n<p>(3) Upon the granting of a decree of judicial separation by the court, the court may, where appropriate, by order give such directions under section 11 of the Guardianship of Infants Act, 1964, as it thinks proper regarding the welfare or custody of, or right of access to, an infant (being an infant within the meaning of that Act) as if an application had been made under that section.<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F3<br \/>\nSubstituted (27.02.1997) by Family Law (Divorce) Act 1996 (33\/1996), s. 45(a), commenced as per s. 1(2).<\/p>\n<p>Editorial Notes:<\/p>\n<p>E2<br \/>\nPower granted to Court, in proceedings relating to subs. (3), to direct the HSE to undertake an investigation of a child\u2019s circumstances (31.10.1995) by Child Care Act 1991 (17\/1991), s. 20(1), S.I. No. 258 of 1995; as substituted (9.01.1998) by Children Act 1997 (40\/1997), s. 17, commenced as per s. 1(2), and as amended (1.01.2005) by Health Act 2004 (42\/2004), s. 75 and sch. 7 part 6, S.I. No. 887of 2004.<\/p>\n<h4>Supplemental provisions as to proof of adultery and unreasonable behaviour.<\/h4>\n<p>4.\u2014(1) Where the spouses have lived with each other for more than 1 year after it became known to the applicant that the respondent had committed adultery the applicant shall not be entitled to rely on that adultery for the purposes of section 2 (1) (a) although that adultery may be one of the factors that the applicant may rely on for the purposes of section 2 (1) (b) together with other matters.<\/p>\n<p>(2) 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 for the purpose of section 2 (1) (b) of this Act whether the applicant cannot 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.<\/p>\n<h4>Safeguards to ensure applicant&#8217;s awareness of alternatives to separation proceedings and to assist attempts at reconciliation.<\/h4>\n<p>5.\u2014(1) A solicitor, if any, acting for an applicant for a decree of judicial separation shall, prior to the making of an application for a decree of judicial separation\u2014<\/p>\n<p>(a) discuss with the applicant the possibility of reconciliation and give to him the names and addresses of persons qualified to help effect a reconciliation between spouses who have become estranged, and<\/p>\n<p>(b) discuss with the applicant the possibility of engaging in mediation to help effect a separation on an agreed basis with an estranged spouse F4[, give to the applicant the names and addresses of persons who provide a mediation service and inform the applicant of the matters referred to in sections 10 and 11 of the Mediation Act 2017], and<\/p>\n<p>(c) discuss with the applicant the possibility of effecting a separation by the negotiation and conclusion of a separation deed or written separation agreement.<\/p>\n<p>(2) An application for judicial separation shall be accompanied by a F4[statutory declaration made by the solicitor], if any, acting on behalf of the applicant that he has complied with the provisions of subsection (1) of this section and, where a solicitor does F4[not so declare,] the court may adjourn the proceedings for such period as it deems reasonable for the applicant\u2019s solicitor to discuss with the applicant the matters referred to in that subsection.<\/p>\n<p>(3) F5[\u2026]<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F4<br \/>\nSubstituted (1.01.2018) by Mediation Act 2017 (27\/2017), s. 25(a)(i), (ii), S.I. No. 591 of 2017.<\/p>\n<p>F5<br \/>\nDeleted (1.01.2018) by Mediation Act 2017 (27\/2017), s. 25(a)(iii), S.I. No. 591 of 2017.<\/p>\n<h4>Safeguards to ensure respondent\u2019s awareness of alternatives to separation proceedings and to assist attempts at reconciliation.<\/h4>\n<p>6.\u2014(1) A solicitor, if any, acting for a respondent in an application for a decree of judicial separation shall, as soon as possible after receiving instructions from the respondent\u2014<\/p>\n<p>(a) discuss with the respondent the possibility of reconciliation and give to him the names and addresses of persons qualified to help effect a reconciliation between parties to a marriage who have become estranged, and<\/p>\n<p>(b) discuss with the respondent the possibility of engaging in mediation to help effect a separation on an agreed basis with an estranged spouse F6[, give to the respondent the names and addresses of persons who provide a mediation service and inform the respondent of the matters referred to in sections 10 and 11 of the Mediation Act 2017], and<\/p>\n<p>(c) discuss with the respondent the possibility of effecting a separation by the negotiation and conclusion of a separation deed or written separation agreement.<\/p>\n<p>(2) An Entry of Appearance or a Notice of Intention to Defend an application for judicial separation shall be accompanied by a F6[statutory declaration made by the solicitor], if any, acting on behalf of the respondent, that he has complied with the provisions of subsection (1) of this section and where a solicitor does F6[not so declare,] the court may adjourn the proceedings for such period as it deems reasonable for the respondent&#8217;s solicitor to discuss with the respondent the matters referred to in that subsection.<\/p>\n<p>(3) F7[\u2026]<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F6<br \/>\nSubstituted (1.01.2018) by Mediation Act 2017 (27\/2017), s. 25(b)(i), (ii), S.I. No. 591 of 2017.<\/p>\n<p>F7<br \/>\nDeleted (1.01.2018) by Mediation Act 2017 (27\/2017), s. 25(b)(iii), S.I. No. 591 of 2017.<\/p>\n<h4>Adjournment of proceedings to assist reconciliation or agreements on separation.<\/h4>\n<p>7.\u2014(1) Where an application is made under this Act to the court for a decree of judicial separation, the court shall give consideration to the possibility of a reconciliation of the spouses concerned and, accordingly, may adjourn the proceedings at any time for the purpose of affording the spouses an opportunity, if they both so wish, to consider a reconciliation between themselves with or without the assistance of a third party.<\/p>\n<p>(2) If during any adjournment of proceedings to which subsection (1) of this section relates the spouses resume living with each other, no account shall be taken of that fact for the purposes of those proceedings.<\/p>\n<p>(3) Where on an application made under this Act for a decree of judicial separation it appears to the court that no reconciliation of the spouses concerned is possible, it may adjourn or further adjourn the proceedings for the purpose of affording the spouses an opportunity, if they both so wish, to establish agreement (with or without the assistance of a third party) on the terms, so far as is possible, of the separation.<\/p>\n<p>(4) If an adjournment has taken place by virtue of subsection (1) or (3) of this section, either or both of the spouses may request that the hearing of the application be proceeded with and, without prejudice to subsection (5) of this section, the court shall resume hearing the application as soon as is practicable.<\/p>\n<p>(5) The power of adjournment exercisable under subsections (1) and (3) of this section is in addition to and not in substitution for any other power of adjournment exercisable by the court.<\/p>\n<p>(6) Where the court adjourns proceedings under subsection (1) or (3) of this section, it may at its discretion advise the spouses concerned to seek the assistance of a third party for the purpose set out in the appropriate subsection.<\/p>\n<p>(7) F8[\u2026]<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F8<br \/>\nDeleted (27.02.1997) by Family Law (Divorce) Act 1996 (33\/1996), s. 45(b), commenced as per s. 1(2).<\/p>\n<p>F9[<\/p>\n<h4>Non-admissibility as evidence of certain communications relating to reconciliation or separation.<\/h4>\n<p>7A.\u2014An 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 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), and any record of such a communication, made or caused to be made by either of the spouses concerned or such a third party, shall not be admissible as evidence in any court.]<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F9<br \/>\nInserted (27.02.1997) by Family Law (Divorce) Act 1996 (33\/1996), s. 45(c), commenced as per s. 1(2).<\/p>\n<h4>Effect of judicial separation and rescission of decree of separation and ancillary orders upon reconciliation.<\/h4>\n<p>8.\u2014(1) 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.<\/p>\n<p>(2) 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 and such order of rescission shall 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 F10[spouses of each other].<\/p>\n<p>(3) Upon making an order of rescission under subsection (2) of this section 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 under Part II of this Act.<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F10<br \/>\nSubstituted (16.11.2015) by Marriage Act 2015 (35\/2015), s. 19, S.I. No. 504 of 2015.<\/p>\n<h4>Abolition of decree of divorce a mensa et thoro, etc.<\/h4>\n<p>9.\u2014(1) After the commencement of this Act, no action shall lie for divorce a mensa et thoro.<\/p>\n<p>(2) Subsection (1) of this section shall not have effect in relation to any action instituted before the commencement of this Act.<\/p>\n<h4>Court Jurisdiction<\/h4>\n<h4>Definition (Part III).<\/h4>\n<p>30.\u2014In this Part \u201cfamily law proceedings\u201d, in relation to a court, means proceedings before a court of competent jurisdiction under\u2014<\/p>\n<p>(a) this Act,<\/p>\n<p>(b) the Adoption Acts, 1952 to 1988,<\/p>\n<p>(c) the Family Home Protection Act, 1976,<\/p>\n<p>(d) the Family Law (Maintenance of Spouses and Children) Act, 1976,<\/p>\n<p>(e) the Family Law (Protection of Spouses and Children) Act, 1981,<\/p>\n<p>(f) the Family Law Act, 1981,<\/p>\n<p>(g) the Guardianship of Infants Act, 1964,<\/p>\n<p>(h) the Legitimacy Declaration Act (Ireland), 1868,<\/p>\n<p>(i) the Married Women\u2019s Status Act, 1957, or<\/p>\n<p>(j) the Status of Children Act, 1987, F30[and includes proceedings relating to nullity of marriage]<\/p>\n<p>or between spouses under the Partition Act, 1868, and the Partition Act, 1876, where the fact that they are married to each other is of relevance to the proceedings.<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F30<br \/>\nInserted (15.12.1995) by Courts and Court Officers Act 1995 (31\/1995), s. 53, commenced on enactment.<\/p>\n<p>Editorial Notes:<\/p>\n<p>E18<br \/>\nThe Adoption Acts 1952 to 1988 were repealed (1.11.2010) by Adoption Act 2010 (21\/2010), s. 7 and sch. 1 part 1, S.I. No. 511 of 2010.<\/p>\n<p>E19<br \/>\nThe Partition Acts 1868 and 1876 were repealed (1.12.2009) by Land And Conveyancing Law Reform Act 2009 (27\/2009), s. 8(3) and sch. 2, S.I. No. 356 of 2009.<\/p>\n<p>E20<br \/>\nThe Family Law (Protection of Spouses and Children) Act 1981 (21\/1981) was repealed (27.03.1996) by Domestic Violence Act 1996 (1\/1996), s. 23(1), commenced as per s. 25(1).<\/p>\n<h4>Courts, jurisdiction and venue.<\/h4>\n<p>31.\u2014(1) The Circuit Court shall be known as \u201cthe Circuit Family Court\u201d when exercising its jurisdiction to hear and determine family law proceedings or, where provided for, when transferring family law proceedings to the High Court.<\/p>\n<p>(2) Subject to the other provisions of this section, the Circuit Family Court shall, concurrently with the High Court, have jurisdiction to hear and determine proceedings under this Act for a decree of judicial separation.<\/p>\n<p>(3) Where in proceedings under this Act for a decree of judicial separation an order could be made in respect of land whose F31[market value] exceeds F31[\u20ac3,000,000] and an application commencing those proceedings is made to the Circuit Family Court, that Court shall, if the respondent so requires before the hearing thereof, transfer those proceedings to the High Court, but any order made (including an interim order) or act done in the course of those proceedings before such transfer shall be valid unless discharged or varied by order of the High Court.<\/p>\n<p>(4) The jurisdiction referred to in subsection (2) of this section shall only be exercisable where either of the spouses is domiciled in the State on the date of the application commencing proceedings or is ordinarily resident in the State throughout the period of one year ending on that date.<\/p>\n<p>(5) The jurisdiction referred to in subsection (2) of this section shall, in the Circuit Family Court, be exercised by the judge of the circuit where either spouse to the proceedings ordinarily resides or carries on any profession, business or occupation.<\/p>\n<p>F32[(6) In this section &#8220;market value&#8221; means, in relation to land, the price that would have been obtained in respect of the unencumbranced fee simple were the land to have been sold on the open market, in the year immediately preceding the bringing of the proceedings concerned, in such manner and subject to such conditions as might reasonably be calculated to have resulted in the vendor obtaining the best price for the land.]<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F31<br \/>\nSubstituted (11.01.2017) by Civil Liability and Courts Act 2004 (31\/2004), s. 50(a), S.I. No. 2 of 2017.<\/p>\n<p>F32<br \/>\nInserted (11.01.2017) by Civil Liability and Courts Act 2004 (31\/2004), s. 50(b), S.I. No. 2 of 2017.<\/p>\n<p>Modifications (not altering text):<\/p>\n<p>C6<br \/>\nApplication of subs. (4) restricted (1.08.2022) by European Union (Decisions in Matrimonial Matters and in Matters of Parental Responsibility and International Child Abduction) Regulations 2022 (S.I. No. 400 of 2022), reg. 7(b), in effect as per reg. 1(2).<\/p>\n<p>7. The following provisions shall not have effect in relation to proceedings to which the Council Regulation (other than Article 6) applies: &#8230;<\/p>\n<p>(b) section 31 (4) of the Judicial Separation and Family Law Reform Act 1989 (No. 6 of 1989);<\/p>\n<p>&#8230;<\/p>\n<p>C7<br \/>\nApplication of subs. (4) restricted (1.03.2005) by European Communities (Judgments in Matrimonial Matters and Matters of Parental Responsibility) Regulations 2005 (S.I. No. 112 of 2005), reg. 7(b), in effect as per reg. 1(2).<\/p>\n<p>Non-applicability of certain statutory provisions.<\/p>\n<p>7. The following provisions shall not have effect in relation to proceedings to which the Council Regulation (other than Article 7) applies:<\/p>\n<p>&#8230;<\/p>\n<p>(b) section 31(4) of the Judicial Separation and Family Law Reform Act 1989;<\/p>\n<p>&#8230;<\/p>\n<p>C8<br \/>\nApplication of subs. (4) restricted (27.02.1997) by Family Law (Divorce) Act 1996 (33\/1996), s. 39(2), commenced as per s. 1(2).<\/p>\n<p>Exercise of jurisdiction by court in relation to divorce.<\/p>\n<p>39. \u2014 &#8230;<\/p>\n<p>(2) Where proceedings are pending in a court in respect of an application for the grant of a decree of divorce or in respect of an appeal from the determination of such an application and the court has or had, by virtue of subsection (1), jurisdiction to determine the application, the court shall, notwithstanding section 31(4) of the Act of 1989 or section 39 of the Act of 1995, as the case may be, have jurisdiction to determine an application for the grant of a decree of judicial separation or a decree of nullity in respect of the marriage concerned.<\/p>\n<p>C9<br \/>\nApplication of subs. (4) restricted (1.08.1996) by Family Law Act 1995 (26\/1995), s. 39, S.I. No. 46 of 1996.<\/p>\n<p>Exercise of jurisdiction by court in relation to nullity.<\/p>\n<p>39. \u2014 &#8230;<\/p>\n<p>(2) Where proceedings are pending in a court in respect of an application for the grant of a decree of nullity or in respect of an appeal from the determination of such an application and the court has or had, by virtue of subsection (1), jurisdiction to determine the application, the court, notwithstanding section 31 (4) of the Act of 1989, shall have jurisdiction to determine an application for the grant of a decree of judicial separation in respect of the marriage concerned.<\/p>\n<p>Editorial Notes:<\/p>\n<p>E21<br \/>\nPrevious affecting provision: application of subs. (4) restricted (23.10.2001) by European Communities (Judgments in Matrimonial Matters and Matters of Parental Responsibility) Regulations 2001 (S.I. No. 472 of 2001), reg. 3(2), subsequently revoked (1.03.2005) by European Communities (Judgments in Matrimonial Matters and Matters of Parental Responsibility) Regulations 2005 (S.I. No. 112 of 2005), reg. 11, in effect as per reg. 1(2).<\/p>\n<p>E22<br \/>\nPrevious affecting provision: power of the Court to determine rateable valuation for the purpose of subs. (3) provided (1.08.1996) by Family Law Act 1995 (26\/1995), s. 38(5), S.I. No. 46 of 1996; subsequently repealed by Civil Liability and Courts Act 2004 (31\/2004), s. 51(b), not commenced as of 2.11.2012.<\/p>\n<h4>Hearing of proceedings.<\/h4>\n<p>32.\u2014The Circuit Family Court shall sit to hear and determine proceedings instituted under this Act and under the Acts F33[and proceedings] referred to in section 30 of this Act in a different place or at different times or on different days from those on which the ordinary sittings of the Circuit Court are held.<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F33<br \/>\nInserted (15.12.1995) by Courts and Court Officers Act 1995 (31\/1995), s. 54, commenced on enactment.<\/p>\n<p>Modifications (not altering text):<\/p>\n<p>C10<br \/>\nApplication of section extended (1.01.2019) by Domestic Violence Act 2018 (6\/2018), s. 23(4), S.I. No. 532 of 2018.<\/p>\n<p>Hearing of civil proceedings<\/p>\n<p>23. \u2014 &#8230;<\/p>\n<p>(4) Civil proceedings under this Act before the Circuit Court shall be heard by the Circuit Family Court and accordingly, section 32 and subsections (1) and (2) of section 33 of the Act of 1989 shall apply to those proceedings.<\/p>\n<p>&#8230;<\/p>\n<p>C11<br \/>\nApplication of section extended (27.02.1997) by Family Law (Divorce) Act 1996 (33\/1996), s. 38(5), commenced as per s. 1(2).<\/p>\n<p>Jurisdiction of courts and venue.<\/p>\n<p>38. \u2014 &#8230;<\/p>\n<p>(5) Section 32 of the Act of 1989 shall apply to proceedings under this Act in the Circuit Family Court and sections 33 to 36 of that Act shall apply to proceedings under this Act in that Court and in the High Court.<\/p>\n<p>&#8230;<\/p>\n<p>C12<br \/>\nApplication of section extended (1.08.1996) by Family Law Act 1995 (26\/1995), s. 38(6), S.I. No. 46 of 1996.<\/p>\n<p>Jurisdiction of courts and venue.<\/p>\n<p>38. \u2014 &#8230;<\/p>\n<p>(6) Section 32 of the Act of 1989 shall apply to proceedings under this Act in the Circuit Family Court and sections 33 to 36 of that Act shall apply to proceedings under this Act in that Court and in the High Court.<\/p>\n<p>&#8230;<\/p>\n<p>C13<br \/>\nApplication of section extended (27.03.1996) by Domestic Violence Act 1996 (1\/1996), s. 16(4) and (5), commenced as per s. 25(1).<\/p>\n<p>Hearing of civil proceedings, etc.<\/p>\n<p>16. \u2014 &#8230;<\/p>\n<p>(4) Civil proceedings under this Act before the Circuit Court shall be heard by the Circuit Family Court and, accordingly, the provisions of section 32 and subsection (1) and (2) of section 33 of the Judicial Separation and Family Law Reform Act, 1989, shall apply to such proceedings.<\/p>\n<p>(5) The proceedings to which subsections (3) and (4) of section 33 of the Judicial Separation and Family Law Reform Act, 1989 , apply shall be deemed to include civil proceedings under this Act.<\/p>\n<h4>Conduct of family proceedings in Circuit and High Courts.<\/h4>\n<p>33.\u2014(1) Circuit Family Court proceedings shall be as informal as is practicable and consistent with the administration of justice.<\/p>\n<p>(2) Neither judges sitting in the Circuit Family Court nor barristers nor solicitors appearing in such courts shall wear wigs or gowns.<\/p>\n<p>(3) Family law proceedings before the High Court shall be as informal as is practicable and consistent with the administration of justice.<\/p>\n<p>(4) In hearing and determining such proceedings as are referred to in subsection (3) of this section neither judges sitting in the High Court nor barristers nor solicitors appearing in such proceedings shall wear wigs or gowns.<\/p>\n<p>Annotations<\/p>\n<p>Modifications (not altering text):<\/p>\n<p>C14<br \/>\nApplication of section extended (1.01.2019) by Domestic Violence Act 2019 (6\/2018), s. 15(4), (5), S.I. No. 532 of 2018.<\/p>\n<p>Hearing of civil proceedings<\/p>\n<p>15. \u2014 &#8230;<\/p>\n<p>(4) Civil proceedings under this Act before the Circuit Court shall be heard by the Circuit Family Court and accordingly, section 32 and subsections (1) and (2) of section 33 of the Act of 1989 shall apply to those proceedings.<\/p>\n<p>(5) The proceedings to which subsections (3) and (4) of section 33 of the Act of 1989 apply shall be deemed to include proceedings under this Act.<\/p>\n<p>C15<br \/>\nApplication of subs. (1) and (2) extended (1.01.2011) by Protection of Children (Hague Convention) Act 2000 (37\/2000), s. 4(4), S.I. No. 650 of 2010.<\/p>\n<p>Exercise of jurisdiction.<\/p>\n<p>4. \u2014 &#8230;<\/p>\n<p>(4) Sections 33(1), 33(2) and 45 (which provisions relate to the conduct of family proceedings) of the Judicial Separation and Family Law Reform Act, 1989, shall apply and have effect in relation to an application under subsection (1)(b).<\/p>\n<p>C16<br \/>\nApplication of section extended (27.02.1997) by Family Law (Divorce) Act 1996 (33\/1996), s. 38(5), commenced as per s. 1(2).<\/p>\n<p>Jurisdiction of courts and venue.<\/p>\n<p>38. \u2014 &#8230;<\/p>\n<p>(5) Section 32 of the Act of 1989 shall apply to proceedings under this Act in the Circuit Family Court and sections 33 to 36 of that Act shall apply to proceedings under this Act in that Court and in the High Court.<\/p>\n<p>&#8230;<\/p>\n<p>C17<br \/>\nApplication of section extended (1.08.1996) by Family Law Act 1995 (26\/1995), s. 38(6), S.I. No. 46 of 1996.<\/p>\n<p>Jurisdiction of courts and venue.<\/p>\n<p>38. \u2014 &#8230;<\/p>\n<p>(6) Section 32 of the Act of 1989 shall apply to proceedings under this Act in the Circuit Family Court and sections 33 to 36 of that Act shall apply to proceedings under this Act in that Court and in the High Court.<\/p>\n<p>&#8230;<\/p>\n<p>C18<br \/>\nApplication of section extended (27.03.1996) by Domestic Violence Act 1996 (1\/1996), s. 16(4) and (5), commenced as per s. 25(1).<\/p>\n<p>Hearing of civil proceedings, etc.<\/p>\n<p>16. \u2014 &#8230;<\/p>\n<p>(4) Civil proceedings under this Act before the Circuit Court shall be heard by the Circuit Family Court and, accordingly, the provisions of section 32 and subsection (1) and (2) of section 33 of the Judicial Separation and Family Law Reform Act, 1989, shall apply to such proceedings.<\/p>\n<p>(5) The proceedings to which subsections (3) and (4) of section 33 of the Judicial Separation and Family Law Reform Act, 1989, apply shall be deemed to include civil proceedings under this Act.<\/p>\n<p>C19<br \/>\nApplication of subs. (1) and (2) extended by (31.10.1995) Child Care Act 1991 (17\/1991), s. 29(2), S.I. No. 258 of 1995.<\/p>\n<p>Hearing of proceedings.<\/p>\n<p>29. \u2014 &#8230;<\/p>\n<p>(2) The provisions of sections 33(1), 33(2) and 45 of the Judicial Separation and Family Law Reform Act, 1989, shall apply to proceedings under Part III, IV or VI as they apply to proceedings to which those provisions relate.<\/p>\n<p>&#8230;<\/p>\n<p>C20<br \/>\nApplication of subs. (3) and (4) extended (1.10.1991) by Child Abduction and Enforcement of Custody Orders Act 1991 (6\/1991), s. 39(2), S.I. No. 235 of 1991.<\/p>\n<p>Amendment of Judicial Separation and Family Law Reform Act, 1989.<\/p>\n<p>39. \u2014 &#8230;<\/p>\n<p>(2) The proceedings to which subsections (3) and (4) of section 33 (conduct of family proceedings in the High Court) of the Act of 1989 apply shall be deemed to include proceedings under this Act.<\/p>\n<h4>Privacy.<\/h4>\n<p>34.\u2014Proceedings under this Act shall be heard otherwise than in public.<\/p>\n<p>Annotations<\/p>\n<p>Modifications (not altering text):<\/p>\n<p>C21<br \/>\nApplication of section restricted (31.03.2005) by Civil Liability and Courts Act 2004 (31\/2004), s. 40, S.I. No. 544 of 2004, as amended (1.08.2008) by Civil Law (Miscellaneous Provisions) Act 2008 (14\/2008), s. 31, S.I. No. 274 of 2008.<\/p>\n<p>Proceedings heard otherwise than in public.<\/p>\n<p>40. \u2014 &#8230;<\/p>\n<p>(2) For the purposes of this section each of the following shall be a \u201crelevant enactment\u201d\u2014<\/p>\n<p>&#8230;<\/p>\n<p>(f) section 34 of the Act of 1989;<\/p>\n<p>&#8230;<\/p>\n<p>(3) Nothing contained in a relevant enactment shall operate to prohibit\u2014<\/p>\n<p>(a) the preparation by a barrister at law or a solicitor or a person falling within any other class of persons specified in regulations made by the Minister and publication of a report of proceedings to which the relevant enactment relates, or<\/p>\n<p>(b) the publication of the decision of the court in such proceedings,<\/p>\n<p>in accordance with rules of court, provided that the report or decision does not contain any information which would enable the parties to the proceedings or any child to which the proceedings relate to be identified and, accordingly, unless in the special circumstances of the matter the court, for reasons which shall be specified in the direction, otherwise directs, a person referred to in paragraph (a) may, for the purposes of preparing [such a report \u2014<\/p>\n<p>(i) attend the proceedings, and<\/p>\n<p>(ii) have access to any relevant documents,<\/p>\n<p>subject to any directions the court may give in that behalf.]<\/p>\n<p>(4) Nothing contained in a relevant enactment shall operate to prohibit a party to proceedings to which the enactment relates from supplying copies of, or extracts from, orders made in the proceedings to such persons and in accordance with such conditions (if any) as may be prescribed by order of the Minister.<\/p>\n<p>(5) Nothing contained in a relevant enactment shall operate to prohibit a party to proceedings to which the enactment relates from being accompanied, in such proceedings, in court by another person subject to the approval of the court and any directions it may give in that behalf.<\/p>\n<p>(6) Nothing contained in an enactment that prohibits proceedings to which the enactment relates from being heard in public shall operate to prohibit the production of a document prepared for the purposes or in contemplation of such proceedings or given in evidence in such proceedings, to\u2014<\/p>\n<p>(a) a body or other person when it, or he or she, is performing functions under any enactment consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter, or<\/p>\n<p>(b) such body or other person as may be prescribed by order made by the Minister, when the body or person concerned is performing functions consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter as may be so prescribed.<\/p>\n<p>(7) Nothing contained in an enactment that prohibits proceedings to which the enactment relates from being heard in public shall operate to prohibit the giving of information or evidence given in such proceedings to\u2014<\/p>\n<p>(a) a body or other person when it, or he or she, is performing functions under any enactment consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter, or<\/p>\n<p>(b) such body or other person as may be prescribed by order made by the Minister, when the body or person concerned is performing functions consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter as may be so prescribed.<\/p>\n<p>(8) A court hearing proceedings under a relevant enactment shall, on its own motion or on the application of one of the parties to the proceedings, have discretion to order disclosure of documents, information or evidence connected with or arising in the course of the proceedings to third parties if such disclosure is required to protect the legitimate interests of a party or other person affected by the proceedings.<\/p>\n<p>(9) A hearing, inquiry or investigation referred to in subsection (6) or (7) shall, in so far as it relates to a document referred to in subsection (6) or information or evidence referred to in subsection (7), be conducted otherwise than in public and no such document, information or evidence shall be published.<\/p>\n<p>(10) This section shall apply to proceedings brought, and decisions of a court made, whether before or after the commencement of this section.<\/p>\n<p>[(11) In subsection (3), \u2018relevant documents\u2019, in relation to any proceedings referred to in that subsection\u2014<\/p>\n<p>(a) subject to paragraph (b), means\u2014<\/p>\n<p>(i) the petition, summons or other originating document in the proceedings,<\/p>\n<p>(ii) pleadings and other documents (including the terms of settlement, if any) produced to or lodged with the court, or included in the book of pleadings, in the course of the proceedings, and<\/p>\n<p>(iii) any order made by the court in the proceedings,<\/p>\n<p>(b) does not include any document the contents of which are expressed to be without prejudice or in terms having a like effect.]<\/p>\n<p>C22<br \/>\nApplication of section extended (27.02.1997) by Family Law (Divorce) Act 1996 (33\/1996), s. 38(5), commenced as per s. 1(2).<\/p>\n<p>Jurisdiction of courts and venue.<\/p>\n<p>38. \u2014 &#8230;<\/p>\n<p>(5) Section 32 of the Act of 1989 shall apply to proceedings under this Act in the Circuit Family Court and sections 33 to 36 of that Act shall apply to proceedings under this Act in that Court and in the High Court.<\/p>\n<p>&#8230;<\/p>\n<p>C23<br \/>\nApplication of section extended (1.08.1996) by Family Law Act 1995 (26\/1995), s. 38(6), S.I. No. 46 of 1996.<\/p>\n<p>Jurisdiction of courts and venue.<\/p>\n<p>38. \u2014 &#8230;<\/p>\n<p>(6) Section 32 of the Act of 1989 shall apply to proceedings under this Act in the Circuit Family Court and sections 33 to 36 of that Act shall apply to proceedings under this Act in that Court and in the High Court.<\/p>\n<p>&#8230;<\/p>\n<h4>Costs.<\/h4>\n<p>35.\u2014The costs of any proceedings under this Act shall be at the discretion of the court.<\/p>\n<p>Annotations<\/p>\n<p>Modifications (not altering text):<\/p>\n<p>C24<br \/>\nApplication of section extended (27.02.1997) by Family Law (Divorce) Act 1996 (33\/1996), s. 38(5), commenced as per s. 1(2).<\/p>\n<p>Jurisdiction of courts and venue.<\/p>\n<p>38. \u2014&#8230;<\/p>\n<p>(5) Section 32 of the Act of 1989 shall apply to proceedings under this Act in the Circuit Family Court and sections 33 to 36 of that Act shall apply to proceedings under this Act in that Court and in the High Court.<\/p>\n<p>&#8230;<\/p>\n<p>C25<br \/>\nApplication of section extended (1.08.1996) by Family Law Act 1995 (26\/1995), s. 38(6), S.I. No. 46 of 1996.<\/p>\n<p>Jurisdiction of courts and venue.<\/p>\n<p>38. \u2014 &#8230;<\/p>\n<p>(6) Section 32 of the Act of 1989 shall apply to proceedings under this Act in the Circuit Family Court and sections 33 to 36 of that Act shall apply to proceedings under this Act in that Court and in the High Court.<\/p>\n<p>&#8230;<\/p>\n<h4>Rules of court.<\/h4>\n<p>36.\u2014(1) Rules of court shall provide for the documentation required for the commencement of proceedings under this Act in a summary manner.<\/p>\n<p>(2) The rules of court, and any established form or course of pleading, practice or procedure, for the purposes of any enactment or jurisdiction affected by this Act shall, pending the due making of rules of court, apply for such purposes with such adaptations as may be necessary.<\/p>\n<p>Annotations<\/p>\n<p>Modifications (not altering text):<\/p>\n<p>C26<br \/>\nApplication of section extended (27.02.1997) by Family Law (Divorce) Act 1996 (33\/1996), s. 38(5), commenced as per s. 1(2).<\/p>\n<p>Jurisdiction of courts and venue.<\/p>\n<p>38. \u2014 &#8230;<\/p>\n<p>(5) Section 32 of the Act of 1989 shall apply to proceedings under this Act in the Circuit Family Court and sections 33 to 36 of that Act shall apply to proceedings under this Act in that Court and in the High Court.<\/p>\n<p>&#8230;<\/p>\n<p>C27<br \/>\nApplication of section extended (1.08.1996) by Family Law Act 1995 (26\/1995), s. 38(6), S.I. No. 46 of 1996.<\/p>\n<p>Jurisdiction of courts and venue.<\/p>\n<p>38. \u2014 &#8230;<\/p>\n<p>(6) Section 32 of the Act of 1989 shall apply to proceedings under this Act in the Circuit Family Court and sections 33 to 36 of that Act shall apply to proceedings under this Act in that Court and in the High Court.<\/p>\n<p>&#8230;<\/p>\n<p>PART IV<\/p>\n<p>Miscellaneous<\/p>\n<h4>Saver for existing law.<\/h4>\n<p>37.\u2014Save in so far as otherwise provided in this Act, the law relating to proceedings for divorce a mensa et thoro shall, so far as applicable, apply in relation to proceedings for judicial separation.<\/p>\n<h4>Amendment of sections 5 and 6 of Family Law (Maintenance of Spouses and Children) Act, 1976.<\/h4>\n<p>38.\u2014(1) In this section \u201cthe Act of 1976\u201d means the Family Law (Maintenance of Spouses and Children) Act, 1976.<\/p>\n<p>(2) Section 5 of the Act of 1976 is hereby amended\u2014<\/p>\n<p>(a) by the insertion in subsection (2) after \u201cthe other spouse\u201d of the following:<\/p>\n<p>\u201cunless, having regard to all the circumstances (including the conduct of the other spouse), the Court is of opinion that it would be repugnant to justice not to make a maintenance order\u201d,<\/p>\n<p>(b) by the deletion of subsection (3), and<\/p>\n<p>(c) by the insertion of the following paragraph after paragraph (b) of subsection (4):<\/p>\n<p>\u201c(c) the conduct of each of the spouses, if that conduct is such that in the opinion of the Court it would in all the circumstances be repugnant to justice to disregard it.\u201d.<\/p>\n<p>(3) Section 6 of the Act of 1976 is hereby amended\u2014<\/p>\n<p>(a) by the insertion in paragraph (b) of subsection (1), after \u201cany circumstances not existing when the order was made\u201d, of the following:<\/p>\n<p>\u201c(including the conduct of each of the spouses, if that conduct is such that in the opinion of the Court it would in all the circumstances be repugnant to justice to disregard it)\u201d,<\/p>\n<p>(b) by the insertion in subsection (2), after \u201cand continues to desert the maintenance debtor\u201d, of the following:<\/p>\n<p>\u201cunless, having regard to all the circumstances (including the conduct of the other spouse), the Court is of opinion that it would be repugnant to justice to do so.\u201d,<\/p>\n<p>(c) by the deletion of subsection (4), and<\/p>\n<p>(d) by the deletion of or adultery by\u201d in subsection (5) and the substitution of \u201cby, or conduct of,\u201d.<\/p>\n<h4>Discharge of orders under Family Law (Maintenance of Spouses and Children) Act, 1976.<\/h4>\n<p>39.\u2014F34[\u2026]<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F34<br \/>\nRepealed (1.08.1996) by Family Law Act 1995 (26\/1995), s. 3 and sch., S.I. No. 46 of 1996, subject to transitional provisions in s. 3(2).<\/p>\n<h4>Reports on children in guardianship cases.<\/h4>\n<p>40.\u2014F35[\u2026]<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F35<br \/>\nRepealed (1.08.1996) by Family Law Act 1995 (26\/1995), s. 3 and sch., S.I. No. 46 of 1996, subject to transitional provisions in s. 3(2).<\/p>\n<h4>Custody of dependent children.<\/h4>\n<p>41.\u2014F36[(1) In this section \u2018dependent member of the family\u2019 has the meaning assigned to it by section 2 of the Family Law Act, 1995.<\/p>\n<p>(2) Where the court grants a decree of judicial separation, it may declare either of the spouses concerned to be unfit to have custody of any dependent member of the family who is a minor and, if it does so and the spouse to whom the declaration related is a parent of a dependent member of the family who is a minor, that spouse shall not, on the death of the other spouse, be entitled as of right to the custody of that minor.]<\/p>\n<p>(3) Section 18 (1) of the Guardianship of Infants Act, 1964, is hereby repealed except in relation to an action instituted before the commencement of this Act.<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F36<br \/>\nSubstituted (9.01.1998) by Children Act 1997 (40\/1997), s. 16, commenced as per s. 1(2).<\/p>\n<h4>Amendment of section 120 (2) of Succession Act, 1965.<\/h4>\n<p>42.\u2014(1) Section 120 (2) of the Succession Act, 1965 is hereby amended by the deletion of the words from \u201cagainst whom the deceased obtained a decree of divorce a mensa et thoro,\u201d to \u201cand a spouse\u201d.<\/p>\n<p>(2) Subsection (1) of this section shall not have effect in relation to a decree of divorce a mensa et thoro granted in proceedings instituted before the commencement of this Act.<\/p>\n<h4>Divorce a mensa et thoro decrees and alimony orders.<\/h4>\n<p>43.\u2014Any order made by either the Circuit Court or the High Court granting a decree of divorce a mensa et thoro in proceedings issued before the commencement of this Act shall not be affected by this Act save that any alimony order made subsequent to the granting of such decree shall be deemed for all purposes to be an order made under section 14 (1) (a) of this Act.<\/p>\n<p>Annotations<\/p>\n<p>Editorial Notes:<\/p>\n<p>E23<br \/>\nS. 14 was repealed (1.08.1996) by Family Law Act 1995 (26\/1995), s. 3 and sch., S.I. No. 46 of 1996. An equivalent provision dealing with periodical payments and lump sum orders is contained (1.08.1996) in Family Law Act 1995, s. 8, S.I. No. 46 of 1996.<\/p>\n<h4>Collusion, condonation, recrimination, connivance.<\/h4>\n<p>44.\u2014(1) Collusion between the spouses in connection with an application for a judicial separation or, subject to subsection (2) of this section, any conduct (including condonation or recrimination) on the part of the applicant shall not be a bar to the grant of a decree of judicial separation.<\/p>\n<p>(2) Where an application for a decree of judicial separation is made on the ground of adultery and the respondent proves that the adultery was committed with the connivance of the applicant the court may refuse the application.<\/p>\n<h4>Conduct of District Court family proceedings.<\/h4>\n<p>45.\u2014(1) Proceedings before the District Court under the Guardianship of Infants Act, 1964, the Family Law (Maintenance of Spouses and Children) Act, 1976, the Family Home Protection Act, 1976, section 9 of the Family Law Act, 1981, the Family Law (Protection of Spouses and Children) Act, 1981 and the F37[, the Status of Children Act, 1987, and the Child Abduction and Enforcement of Custody Orders Act, 1991,] shall be as informal as is practicable and consistent with the administration of justice.<\/p>\n<p>(2) Neither district justices hearing and determining such proceedings as are referred to in subsection (1) of this section nor barristers nor solicitors appearing in such proceedings shall wear wigs or gowns.<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F37<br \/>\nSubstituted (1.10.1991) by Child Abduction and Enforcement of Custody Orders Act 1991 (6\/1991), s. 39(3), S.I. No. 235 of 1991.<\/p>\n<p>Modifications (not altering text):<\/p>\n<p>C28<br \/>\nJudges\u2019 robes when hearing proceedings under subs. (1) or proceedings involving a child specified by District Court Rules 1997 (S.I. No. 93 of 1997), order 5, as substituted (8.03.2017) by District Court (Judges\u2019 Robes) Rules 2017 (S.I. No. 77 of 2017), rule 2.<\/p>\n<p>[Order 5<\/p>\n<p>Judges robes<\/p>\n<p>&#8230;<\/p>\n<p>2. A Judge, when hearing and determining such proceedings as are referred to in section 45 (1) of the Judicial Separation and Family Law Reform Act 1989 (No. 6 of 1989) or proceedings involving a child shall not be required to wear either such gown but shall during the sittings of the Court wear white bands or a single white neck tab and dark attire.]<\/p>\n<p>C29<br \/>\nApplication of section extended (1.01.2011) by Protection of Children (Hague Convention) Act 2000 (37\/2000), s. 4(4), S.I. No. 650 of 2010.<\/p>\n<p>Exercise of jurisdiction.<\/p>\n<p>4. \u2014 &#8230;<\/p>\n<p>(4) Sections 33(1), 33(2) and 45 (which provisions relate to the conduct of family proceedings) of the Judicial Separation and Family Law Reform Act, 1989, shall apply and have effect in relation to an application under subsection (1)(b).<\/p>\n<p>C30<br \/>\nApplication of section extended (31.10.1995) by Child Care Act 1991 (17\/1991), s. 29(2), S.I. No. 258 of 1995.<\/p>\n<p>Hearing of proceedings.<\/p>\n<p>29. \u2014 &#8230;<\/p>\n<p>(2) The provisions of sections 33 (1), 33 (2) and 45 of the Judicial Separation and Family Law Reform Act, 1989, shall apply to proceedings under Part III, IV or VI as they apply to proceedings to which those provisions relate.<\/p>\n<p>&#8230;<\/p>\n<h4>Short title and commencement.<\/h4>\n<p>46.\u2014(1) This Act may be cited as the Judicial Separation and Family Law Reform Act, 1989.<\/p>\n<p>(2) This Act shall come into operation on the day that is 6 months after the date of the passing of this Act.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-20802\" data-postid=\"20802\" class=\"themify_builder_content themify_builder_content-20802 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Background 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) \u00a0or \u201cunnatural practices\u201d. Its effect was to relieve [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[102],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/20802"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=20802"}],"version-history":[{"count":9,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/20802\/revisions"}],"predecessor-version":[{"id":32917,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/20802\/revisions\/32917"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=20802"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=20802"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=20802"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}