When a marriage breaks down, the most natural reaction of most people in Ireland would be to try to come to an agreement with their spouse and put it into writing. There is definitely a school of thought that says “Why would I bring in solicitors who will charge thousands and make things more complicated?”. It is for this reason the Legal Separation Agreement came into being.
What is a Separation Agreement?
In its most basic terms, a separation agreement is a legally binding contract between the spouses that specifies each spouse’s future duties and responsibilities. The main term will be that the spouses will in future live apart which removes the spouse’s duty to cohabit with one another. It also includes a clause called a nonmolestation clause which effectively means not to molest, annoy, disturb or interfere with each other. It also sets out the living arrangements of the children, the maintenance, and the access. It can include terms on what is to be done with the family home and the spouses’ succession rights.
Who are Separation Agreements Good for?
These agreements can be suitable for people who for whatever reason do not want anything official saying that they are divorced or separated. They can also be suitable for parties who have parted ways in a quite sudden manner and want to negotiate their short to medium relationship with their ex-spouse. They are also effective where there are no assets that the spouses own. The perceived benefits of a legal separation agreement are that it is a cost-effective solution and can also be quite a quick solution with amicable and motivated spouses.
So what are the steps to create a Legal Separation Agreement in Ireland?
The old-fashioned way was that both spouses would go to their respective family law solicitors and thrash out the agreement. This doesn’t happen that much now as one only needs to wait one year to obtain a court order of a Judicial separation. It is much more common for couples to attend mediation and come out of mediation with a signed mediation agreement. With either of these agreements, most solicitors will advise that it is more desirable to go to court for one main reason.
The reason for this is …The Lawyers’ first rule of fight club. This is when people enter into any agreement the last thing they imagine when they enter it is that the other person will break the agreement. The first thing the solicitor thinks about is what will happen when one person breaks the agreement. We solicitors probably don’t put this out there front and centre because once you have worked in the legal industry for any length of time, it seems so obvious. We are trained to try to see into the future and imagine all the things that can go wrong. We then think into the future of our client coming to our office with this future problem and imagine what practical solution we have for our client.
An Example of a Separation Agreement in Practice
So a case in point, a separation agreement sounds great and in certain circumstances can be ideal. But mostly just think about it, Mary and John’s relationship ends and they have two children. Everything is amicable so it is accepted by John that he move out and rent a place with room for the children to stay 3 nights per week. They agree on maintenance at a certain amount bearing in mind John now has to pay very high rent. Mary accepts that because they are now in a new reality and both their standards of living will have to be reduced as they will now have to support two homes. They both enter the separation agreement. After 1 year Mary meets a new partner who the children love and John decides to stop paying maintenance.
What is Mary to do? She goes to her local family law solicitor in Dublin and is advised that a separation agreement is just like any other agreement and that the court process required is expensive and lengthy as it is essentially the same expense as enforcing a big-time commercial agreement. Mary cannot afford these proceedings so she leaves it and her relationship with John deteriorates further.
Her solicitor advises her that this is the unfortunate reality and that perhaps if she had her time back, they could have spent a small bit more money and have made their separation agreement an order of the court. This would have required both to engage a solicitor, start a process and go to court. If this had been done, Mary would have been able to simply ask her solicitor to list the case in court. John would have been required to attend and explain his rationale for not obeying a court order that he had voluntarily and with legal advice agreed to. Equally, John’s argument could be accepted by the judge and the maintenance may be reduced.
What is The Best Approach for Separation in Ireland?
To sum up, in Ireland currently, people engage in mediation and have a mediated agreement and this can ultimately (if agreed upon by their solicitors as being fair) be ruled as an order of the court. It is important to remember that separation agreements are just contracts between two parties and cannot affect a third party.
It is for this reason that they are entirely unsuitable for spouses with pensions as no agreement they come to can make the Pension trustee amend a person’s pension. Only a court order can affect this. Equally, an agreement between spouses that one person takes over the mortgage has no effect on the mortgage company unless their agreement is sought. The concept of the separation agreement is very sound and admirable but it just seems that currently the concept is given more practical effect these days by entering into mediation or by both spouses engaging solicitors with instructions to settle the case amicably. That is why we recommend talking to your local family law solicitor.
To learn more, you can read our FAQ about separation in Ireland.
