When a couple cannot agree the terms by which they will live separately, an application to the courts for a decree of Judicial Separation can be made by either party. The court must be satisfied that:

• The grounds for the application exist
• The couple has been advised about counselling and mediation
• Proper provision has been made for the welfare of any dependants

If it is satisfied, the court will grant a decree of judicial separation. The decree confirms that the couple is no longer obliged to live together as a married couple. The court may also make orders in relation to custody and access to children, the payment of maintenance and lump sums, the transfer of property, the extinguishment of succession rights, pension rights, etc.

An application for a Judicial Separation is made either in the Circuit Court or the High Court. As in all family law matters, cases are heard in private (in camera) and the public is not admitted to the courtroom.

You cannot apply for a Judicial Separation when a Separation Agreement is already in existence.

An application for a Judicial Separation must be based on one of the following six grounds:

• One party has committed adultery
• One party has behaved in such a way that it would be unreasonable to expect the other spouse to continue to live with them
• One party has deserted the other for at least one year at the time of the application
• The parties have live apart from one another for one year up to the time of the application and both parties agree to the decree being granted
• The parties have lived apart from one another for at least three years at the time of the application for the decree (whether or not both parties agree to the decree being granted)
• The court considers that a normal marital relationship has not existed between the spouses for at least one year before the date of the application for the decree.

The last is by far the most common ground on which the decree is granted, as neither party has to be shown as being at fault.

It is important to note that a decree of Judicial Separation does not give you the right to remarry.