DIY Separation Agreement

Q: How does your service work?

A. On receipt of payment we will send, by return post, a questionnaire designed to obtain the necessary information. The questionnaire is easy to follow with notes on its completion and is continually updated so that the information can be exchanged hassle free and from the comfort of your own home. We are available by telephone, mail or email to answer any queries you may have in relation to the information required. When we receive the returned questionnaire we will examine it closely to ensure we have the required information and we will make contact if necessary. When we are satisfied with the information given us we will complete the necessary paperwork and have it with you within five working days. 

Q. Can I remarry after the granting of a Separation Agreement?

A. A marriage is not dissolved by making a Separation Agreement. To remarry you must first obtain a decree of divorce.

Q. What do the solicitors charge?

A. The solicitor's fees for a Separation Agreement can be very high, for instance we have seen solicitor's bills for a charge of €250 per hour for attendance alone. Any couple who intend employing solicitors and barristers should give consideration to the level of their consent on issues and the value of their properties before deciding what route they wish to take and certainly they should look for a reasonable estimate from more than one solicitor rather than proceeding to grant a blank cheque.

Solicitor's fees vary depending on the level of agreement at the outset and the value of assets but generally they are charging approx. €3,000 to €4,000 each per spouse for a Separation Agreement (although one of our divorce clients was recently asked for €8,000 for a Separation Agreement). Their charges for a Judicial Separation can vary between €5,000 and €50,000 + , each per spouse, depending on the level of acrimony that exists or is made to exist by the time the process arrives in court and of course the value of a couples assets.

Q: Do I need to have a Separation Agreement or Judicial Separation before applying for divorce?

A. No, you are not required to have a mediation or Separation Agreement or a Judicial Separation before applying for a divorce.

Q. What matters should we consider before making a Separation Agreement?

A. Your decision should give consideration to the level of conflict that could arise, especially in relation to contentious issues , like the family home, maintenance, custody, property, assets, pensions etc. If the above matters have all been settled or terms agreed for inclusion in your Separation Agreement then you should have little difficulty in the future. However, the success of your agreement will depend on both parties keeping to their agreement, having proper clauses inserted to cover changes in circumstances and adapting a reasonable approach to matters that may surface for decision in the future. 

Q. Can I continue to use my married name after the making of a Separation Agreement?

A. Wives may take their husband's names on marriage or retain their former names. A wife can retain her former husband's name after a Separation Agreement provided she is not using it for the purpose of fraud or to defraud him or to invade other rights or to embarrass him.

Q. What is a Section 5 Certificate?

A. Under Section 5 of the Judicial Separation and Family Law Reform Act, 1989 any applicant, who is represented by a solicitor , must receive from the solicitor a certificate stating that the solicitor has complied with the section and discussed the possibility of reconciliation between the spouses, has given the names of qualified persons who could help effect a reconciliation between the spouses who have become estranged, including the names and addresses of mediators, and discussed the possibility of engaging in mediation to help effect a Separation Agreement. The certificate must also state that the solicitor has discussed with the Applicant the possibility of effecting a Separation by the negotiation and conclusion of a Separation Deed or written Separation Agreement with the Respondent spouse.

Q. What can we do if we are unable to agree terms?

A . If spouses are unable to resolve their marriage difficulties then they may engage in mediation to effect a Separation Agreement.

Q. What is mediation?

A. Mediation is a process whereby use is made of a mediator or referee to help negotiate between spouses in dispute.  Mediation and the conclusion of a Separation Agreement should then be considered as an alternative to Judicial Separation where the issues of custody and parenting, maintenance, child-care, the family home, pensions, assets, debts etc. can then be sorted in an amiable way. This process can ensure that the interests of both parties and the children are satisfied. A Mediation Agreement can therefore be a first step in addressing the difficulties encountered in a marriage.

Q. Where can I obtain mediation?

A. The Department of Social Community and Family Affairs operate a free Family Mediation Service with Full Time Offices at various centers throughout the country.

Q. What are the benefits of a mediation Agreement?

A. A Mediation Agreement can be a prelude to a Separation Agreement. We would recommend that you consider this route especially if both parties are finding it difficult to agree a settlement. A free information booklet on Separation and Mediation is available from the court offices, and the Citizens Information Centers throughout the country also provide information on this subject.

Q: Do I need a Judicial Separation to solve issues in regard to access, custody of children, maintenance, the family home etc?

No. Custody and Access to children can be addressed through an application under the Guardianship of Infants Act, 1964.

Barring Orders, Safety Orders and Protection Orders can be availed of under the Domestic Violence Act, 1996.

Maintenance can be addressed under the Family Law (Maintenance of Spouses and Children) Act, 1976.

Issues in relation to the Family Home can be addressed under the Family Home Protection Act 1976, the Married Women's Status Act, 1957 and the Family Law Act, 1995. Ownership of property can be determined under Section 36 of the later Act.

Q: What if we have not sorted the Family Home?

If there is Agreement on who is to obtain the family home and it is to be transferred to one spouse then you should consider consulting a solicitor and have the property transferred and waiver documents signed. Unless you are in disagreement the Courts are not the place to transact your business. However it is possible to include your terms of Agreement in relation to the Family Home, Maintenance, Custody, Access etc in your Judicial Separation application.

Q. What if I have reservations that my spouse will not honor the Separation Agreement at a later stage?

A. Whether your spouse dishonors an agreement to pay maintenance based on, consent as outlined in your Judicial Separation application, a Separation Agreement, court orders granted under the Judicial Separation and Family Law Reform Act, 1989 or any previously attained Maintenance Order the situation is more or less the same. If your spouse fails to make provision you will have to apply to the Court to enforce the orders granted or the terms of the agreement.

Q. If I enter into a Separation Agreement will I lose my Deserted Wife's Allowance?

A. Deserted Wife's Allowance, Deserted Wife's Benefit and Lone Parent Allowance continue to be paid to those in receipt of them.(prior to 1997) Upon the granting of a Judicial Separation that is recognised in the State or on entering into a Separation Agreement a deserted wife and a loan parent shall continue to be eligible to receive the allowance's or benefit.

Q. What about the One-Parent Family Payment after a Separation Agreement?

A. One-Parent Family Payment is payable to a ‘qualified parent' with whom a ‘qualified child' normally resides. A qualified parent whether they are a widow, widower or a separated spouse will continue to be a ‘qualified parent' and entitled to the above payment after obtaining a Separation Agreement. Similarly obtaining a Judicial Separation does not deprive a separated spouse of his or her public law entitlement to a Widow or Widowers Pension.