Living together and legal separation

Thursday, 8 October 2009

We are both still living in the family home. How can we obtain a legal separation?

Separating spouses could, if they had agreement on all issues, make a separation agreement. However, for such an agreement to be legally binding they would have to separate on making the agreement. If they continued to live together the agreement would be null and void based on established case law. Agreements on future separation and pre-nuptual arrangements are not accepted by Irish courts. A claim to be living apart under the one roof, would be examined by the court to see are there two separate households. For instance, what are the living arrangements, do the parties provide any services for each other, do they sleep together, do they eat together, do they holiday together, how are the groceries and other household expenditure funded, do the have separate bank accounts etc. Many couples would like to think that they are separated while in fact they are just living in a bad marriage.

Alternatively, either spouse could apply for a decree of Judicial Separation before the Circuit Court pursuant to the Judicial Separation and Family Law Reform Act, 1989. The Applicant must satisfy at least one ground for the granting of the decree. There are only three grounds that support an application whereby the parties need not to be living apart. The first is that the Respondent spouse has committed adultery. The second is that the Respondent spouse has behaved in such a way that the Applicant cannot reasonably be expected to live with the Respondent. It is doubtful if there would be consent on these two grounds and therefore it can be expected that the Applicant would have to prove to the Court the accuracy of the claim and defend it under cross examination.

The third ground under Section 2(1)(f) that lends support to an application while living under the one roof is '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 preceeding the date of the application'. This condition may exist on the basis that one or more parties have withdrawn their consent to the marriage for a period of over one year or they may have been living in separate bedrooms on the understanding that the marriage was over for over one year. It is not for the Court to consider who caused the marriage to break down or for what reason. The Court is required to examine all the circumstances that show that a normal marital relationship has not existed for a period of one year. And while there is no definition what a normal marital relationship is it can be expected that it means cohabitation based on a loving and caring relationship. So even though the 'behaviour' of a spouse towards the other is a ground for a decree of judicial separation in itself, behaviour could also be relied upon under Section 2(1)(f) in that a normal marital relationship has not existed for over a year because of the behaviour of one spouse towards the other. Under this ground the other parties behaviour is less likely to be examined by the Court as the Applicant has refused to accept the behaviour and has withdrawn consent for the marriage. Likewise, the Applicant believes that the Respondent has committed adultary. The Applicant may have no proof but he/she is not required to prove it if not seeking a decree under that ground. It may be that because the Applicant believes his/her spouse committed adultary he/she has withdrawn from the marriage, declared it over and this situation has existed for over one year.