Separation by
Fact
This is simply where the spouses no longer cohabit with one another and
no legal action is taken in order to take account of their changed circumstances.
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Deed of Separation
A Deed of Separation is a document that may be drawn up and executed
by the parties to a marriage, where that marriage has broken down and
where the parties do not wish to have recourse to the Courts for the
purpose of agreeing the terms of the breakdown. A fundamental provision
of every
separation agreement is an agreement that the parties will live apart.
Usually a Deed of Separation will make provision for custody, access
to children, maintenance, division of matrimonial property and Succession
Act rights. The terms will be committed to writing and signed by both
parties.
It is possible
to have a Deed of Separation made a rule of court, if
it contains a provision relating to the payment
of maintenance. If the Deed is made a rule of court the
spouse who is receiving the maintenance can have
the maintenance paid through the District Court Office
and can then avail of the District Court enforcement mechanism
for the recovery of maintenance arrears. If the Deed of
Separation is made a rule of court the spouses are also
afforded the remedy of contempt of Court where a breach
of the agreement occurs.
A Deed of Separation
is a bar to proceedings for Judicial Separation however
it does not act as a bar to Divorce
proceedings but the Court is required in determining an
application for a Divorce to have regard to the terms of
a Deed of Seperation entered into between the parties and
which is still in force.
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Judicial
Separation
Spouses may seek a Judicial Separation through
the Courts. There are six grounds upon which the Court
may grant a Decree of Judicial Separation:
1. The
spouse has committed adultery.
2. The spouse has behaved in such a way that the Applicant
cannot reasonably be expected to live with the Respondent.
3. There has been desertion by one spouse of the other spouse
for a continuous period of at least one year immediately
preceding the date of the application.
4. The spouses have lived apart from each other for a continuous
period of at least one year immediately preceding the date
of the application and the Respondent consents to a decree
being granted.
5. The spouses have lived apart from one another for a
continuous period of at least three years immediately preceding
the date of the application.
6. 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.
In granting a Decree of Judicial Separation the Court
can make various ancillary relief orders. On obtaining
a Decree of Judicial Separation the parties are no longer
required to cohabit but however they are not entitled to
re-marry.
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Divorce
The granting of a Decree of Divorce in a Court effectively relieves spouses
from the obligation to cohabit with one another and allows them to remarry.
An Irish divorce may be obtained in either the High Court or the Circuit
Court depending on the extent of the family property. There is no obligation
on spouses to have either sought a Judicial Separation or effected a
Deed of Separation before seeking a Decree of Divorce.
In order
to successfully obtain a Decree of Divorce from an Irish
Court, it is necessary to satisfy the Court that:-
1. At the date
of the commencement of the proceedings, the spouses have
lived apart for four out of the five previous years.
2. There is no reasonable prospect of a reconciliation between the spouses.
3. Proper provision is or will be made for the spouse and dependent members
of the family.
In addition,
before an Applicant spouse will be granted the Decree
of Divorce sought, the Court must be satisfied that either
spouse is domiciled in the State at the date of issue
of the proceedings or that either spouse was ordinarily
resident in the State for one year before the date of
issue of the proceedings.
The relevant
period of four out of five years must have expired before
the issuing of the Application for the Decree of Divorce.
As a matter
of case law, it is possible to be granted a Divorce if
the parties have lived separate and apart, even under
the same roof.
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Decree Of Nullity
The law of Nullity
is concerned with the legal validity of a marriage at
its inception. A marriage can be declared a nullity where
some vital component, for example, the consent to marry,
is missing. When a marraige is declared null and void
a court is declaring that the couple were never legally
married to one another and they are then legally free
to remarry. The main distinction between a Decree of
Nullity and that of Divorce, is that in a Divorce situation,
a valid marriage is dissolved, whereas, in a Nullity
situation, there never was a valid marriage in the first
place. It is important also to note that there is a difference
between a Nullity granted by the Church and that granted
by the Courts. They are two different remedies and the
granting of one, does not automatically entitle a spouse
to the granting of the other.
The effect of a Decree of Nullity is that spouses cease
to be legally married to one another and so loose their
rights as spouses under various associated legislation.
For instance, a person who has successfully sought a Decree
of Nullity through the Courts will not be entitled to receive
any maintenance in respect of him/herself, as he/she was
not a spouse at any time of the other. Also, the various
succession rights of spouses will be affected by the Decree,
as the parties are no longer considered spouses of each
other.
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