It is very important to distinguish between separation, divorce and annulment. Separation relates to an agreement between a married couple, whose marriage has broken down, concerning the terms on which they will separately. In contrast, a decree of divorce allows both parties to a marriage to remarry. With regard to the civil annulment of a marriage, the consequence is that the marriage is considered to be invalid from the start, so the marriage never legally happened, thus allowing the persons concerned to re-marry.
There is extensive legislation in this area. The Family Law Act 1995 and the Family Law (Divorce) Act 1996 address a wide range of issues and, in relation to many of these, both Acts address matters relating to maintenance, pension entitlements, orders relating the division or sale of property, orders extinguishing succession rights and so on. The Social Welfare (Miscellaneous Provisions) Act 2002, which includes an amendment to the Family Law (Maintenance of Spouses and Children) Act 1976, provides that a court can order that maintenance payments commence at any time from the date of the original application for the maintenance order. This allows the court to backdate the maintenance order to the date the proceedings stated or at any time during that intervening period.
If married couples wish to separate, they have the option of entering into a separation agreement or applying for judicial separation. If it is the case that a couple can agree the terms on which they will live separately, then they can enter into a separation agreement. Such an agreement, which is a legally binding contract reached either through mediation or negotiation through solicitors, usually covers the following main issues:
- an agreement to live apart
- agreed arrangements in relation to custody and access to children
- the occupation and ownership of the family home and any other property
- maintenance and any lump sum payments
- indemnity from debts of other spouse
- succession rights
It is important to note that each party must have their own solicitor so as to ensure that they receive independent legal advice, a relatively recent development in this area is a collaborative approach. This is a co-operative approach to negotiating and settling the issues arising from a family separation without going to court. It means that spouses negotiate the terms of their separation with the assistance of specially trained family lawyers in a controlled and respectful setting where structured negotiations take place in four-way meetings between the spouses and their lawyers. A crucial factor is that the lawyers, having agreed to not take part in any litigation that may occur if an agreement isn't reached, focus on finding a settlement, rather than preparing for court proceedings. Everyone, including the lawyers, is focused on creating together a fair agreement.
If it is the case that a couple separating or wishing to separate cannot agree on matters, they may wish to apply to a court for a judicial separation, in which case the court will decide on the issues that cannot be agreed on. While there is no legal requirement to use a barrister or solicitor in applying for a judicial separation (in fact, persons may represent themselves), given the complex issues that are often involved it is highly advisable to see a family law solicitor (spouses should use different solicitors). If applying for a judicial separation, it is essential to submit four documents to the Circuit Court:
- an application form (known as a Family Law Civil Bill)
- a sworn statement of means, which should set out assets, income, debts, ougoings and liabilities
- a sworn statement relating to the welfare of any children of the marriage, which sets out their personal details as well as their education, health and childcare arrangements. It should also include maintenance and access arrangements.
- a document certifying that each person has been advised of the alternatives to judicial separation (this must be sworn by a solicitor)
When all of these documents have been filed, a date will be given for the court hearing, which is held in private. If the court is satisfied that there are grounds for a judicial separation, it will grant a decree (which does not give the right to re-marry).