Separation and Divorce

At Mangan & Company Solicitors we appreciate that there are a lot of different reasons as to why marriages break down, and we would advise anyone going through these difficulties to try and come to a mutually agreeable solution themselves before bringing the matter before the Courts. We fully encourage and facilitate the route of mediation prior to taking any further action and we offer extensive and unbiased advice in respect of same. Unfortunately, sometimes the only course of action left is via the legal route and in such circumstances we are more than capable of representing you in the proceedings.

There are many factors to consider during a separation or divorce such as the division of assets, child care and custody arrangements as well as spousal maintenance and pension provisions. Also, in the present economic times the management of debt is a significant factor that many separating couples have to deal with. Our approach is always to seek a workable and realistic solution to meet the individual requirements of each case. If there are dependent children in the family, then it is of prime importance that their needs are accurately assessed and met during legal proceedings. If the parties to a family law case cannot agree matters relating to the children, the Court will make decisions with respect to custody and access based on what it determines are in the best interests of the child or children.

Deed of Separation

These are also known as Separation Agreements. If a married couple wish to separate and they can agree the terms upon which they wish to live separate and apart they can enter into a form of Contract called a “Separation Agreement”. Both parties must consent to the terms of separation. It is advisable that both parties swear Affidavits of Means before entering into a Deed of Separation. This is a document that sets out their assets, income, debts, monthly outgoings and pensions. A Deed of Separation is a legally binding contract setting out the each spouse’s rights and obligations with respect to the other.

Issues that can be dealt with in a Deed of Separation include:

  • Custody and access arrangements in relation to any dependant members of the family.
  • Maintenance arrangements
  • Division of family property and assets including what will happen with the family home.
  • The debts and liabilities of both parties.
  • Taxation issues of both parties.
  • Succession rights of both parties.

A Separation Agreement cannot deal with matters in relation to pensions as the Trustees of Pension Schemes are not bound by the terms of a Deed of Separation.

Once parties have entered into a Deed of Separation they cannot issue proceedings in the Courts for a Decree of Judicial Separation. The parties can however apply to Court for a divorce where they can satisfy the necessary criteria.

Judicial Separation

When a separating couple in Ireland cannot agree the terms by which they will live separate and apart, an application to the Courts for a “Decree of Judicial Separation” can be made by either party.

An Application for a Decree of Judicial Separation is made either in the Circuit Court or the High Court. Cases are heard in private: no member of the public is allowed in the Court room. The Court must be satisfied that the couple have been advised of the alternatives to Judicial Separation to include advices about counselling, reconciliation, mediation and other forms of dispute resolution.

The Court may make orders relating to the division of family assets, the income of the parties, maintenance of spouses, maintenance of children, custody and access of children, the debts and liabilities of the parties, pensions and succession rights.

An application for 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.

A decree of judicial separation does not give you the right to remarry or enter into a civil partnership.


A decree of divorce allows both parties to a marriage to remarry or enter into a civil partnership once a divorce has been granted. If a court is satisfied that the required conditions are met, the court will grant the decree of divorce dissolving the marriage. When it grants the decree of divorce, the court may also make orders in relation to custody of children and access to them, the payment of maintenance and lump sums, the transfer of property, the debts and liabilities of the parties, pension rights and the extinguishment of succession rights.

Before a court can grant a divorce, the following conditions must be met:

  • The parties must have been living apart from one another for a period amounting to four out of the previous five years before the application is made.
  • There must be no reasonable prospect of reconciliation.
  • Proper arrangements must have been made or will be made for the spouse and any dependent members of the family such as children of either party and other relatives.

If these conditions are met, either party to a marriage may apply to court for a decree of divorce.

The fact that the parties must have been living separate lives for a number of years before an application for a divorce is made means that many separating couples obtain a separation agreement or a judicial separation to regulate matters between them before they seek a divorce.

In any application for a decree of divorce, the court can review any previous arrangements made by the parties such as a separation agreement, particularly if the circumstances of either party has changed.

When a decree of divorce is granted, it cannot be reversed. Either party can apply to court to have any orders made under the decree - such as maintenance - reviewed by the court.