Separation Agreements vs Divorce
The History of Separation and Divorces in Ireland
In Irish family law, the landscape of pursuing a separation underwent a transformative shift in 1989. Prior to this change, individuals seeking separation faced a significant hurdle—unless they could prove either adultery, cruelty or unnatural practices, their only recourse was a separation agreement. Furthermore, the court process was financially out of reach for many in Ireland.
One poignant example of this struggle is the case of Josey Airey in the 1960’s. Josey spent six years attempting to secure a Separation from her husband, Thomas Airey. However, financial constraints prevented her from accessing the High Court, and free legal aid was only available in criminal matters. In 1973, Josie took her case to the European Commission of Human Rights, resulting in a groundbreaking decision in 1978 that found Ireland in breach of the convention on Human Rights (specifically the right to a fair and public hearing).
The pivotal turning point came in 1979 when the Irish government announced the provision of free legal aid for family law matters. This marked a significant step forward in making legal remedies more accessible for those applying for a separation. This paved the way for the introduction of the Judicial Separation and Family Law Act 1989 which allowed parties to a failed marriage to seek a separation without having to prove fault.
The introduction of Divorce in Ireland was a result of the Fifteenth Amendment of the Constitution Act, which was enacted in 1996 and represented a seismic change in allowing parties to a failed marriage the opportunity to remarry. Prior to this, Ireland had a constitutional ban on Divorce. Under the Family Law (Divorce) Act, 1996, parties had to be living separate for a period of four years. This act was then amended by the Family Law (Divorce) Act 2019, where the period of four years was reduced to two years. The legislation also provided that the period of two years “living separate and apart” could include periods of time where the couple were living under one roof.
Grounds for Separation and Divorce
Clients will often approach us seeking a divorce, but it is crucial that the grounds for Divorce are met. There are three grounds for Divorce:-
- Spouses must be living separately for two out of the previous three years,
- The Court must be satisfied there is no reasonable prospect of reconciliation,
- The Court has to ensure proper provision for both spouses has been met.
While divorces are no fault, there can be circumstances where fault is an issue when it comes to applications for Judicial Separations, in that certain circumstances can give rise to the requirement to show that there has been no marital relationship for twelve months being waived. There are five (broad) grounds for Separation:-
- Adultery,
- Behaviour i.e., unreasonable behaviour (this is a lower level than gross and obvious misconduct, but it can still be difficult to prove),
- Desertion,
- The parties have been living apart for one year,
- The marriage has broken down.
Ancillary Orders
Many clients will be disappointed upon discovering that they are not eligible to file Divorce proceedings and Separation proceedings must instead be filed as they do not fulfil the two year “living apart” requirement.. However, it is important to recognise that the ancillary orders, covering aspects like maintenance and access, remain largely similar in both sets of proceedings.
It is also important to note that although clients may not meet the threshold for a Divorce when separation proceedings are initially issued, divorce proceedings can be issued at a later date, when the grounds for Divorce have been met i.e., when the parties have been living separate and apart for two out of the previous three years.
For further information on any family law related matter, do not hesitate to contact one of our family law solicitors on 01-2960666.
