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Legal Separation

Legal Separation Services

Where a marriage or civil partnership has broken down, there are the day-to-day issues that must be clarified and addressed, to allow families move on with their lives. The types of issues to be dealt with usually are:-

  • Maintenance - for/by you and/or children; regular payments and lump sums
  • Children - Custody and Access
  • Property/other assets - how these should be divided, particularly, the family home
  • Liabilities - how should these be divided
  • Pensions - how these should be handled, to secure your financial future
  • Inheritance Rights - who will inherit your property when you die.

Perhaps you simply wish to put a legal structure on your separation, and are not yet be ready to look for Divorce (perhaps you have not yet been living apart for the required two years out of preceding three years), or you expect you will not be marrying again in the future.

The main ways to pursue a Legal Separation are as follows:-

  1. If you and your former spouse/civil partner are able to agree the terms on which they will live separately, you may enter into a Separation Agreement (Deed of Separation).
  2. When a couple cannot agree the terms by which they will live separately, either party can apply to the courts (Circuit or High) for a Decree of Judicial Separation.

Types of Family Law

What are the Options?

There are essentially three different ways of separating – by way of Mediated Agreement, by way of formal Separation Agreement and by way of Judicial Separation.

    1. Mediated Agreements are drawn up through Mediation, which is a form of dispute resolution, rather than any form of couples’ counselling. Usually only one Mediator is involved, and the spouses/civil partners share the Mediator’s Costs.The Mediator’s function is to encourage the separating couple to co-operate with each other in working out a practical separation arrangement which is acceptable to both.  The Mediation Agreement is not legally binding, but can be used as the basis for a legal Separation Agreement (also known as a ‘Deed of Separation) which is drawn up by your Solicitor.We always explain to our clients the benefits of Mediation, and strongly advise them to pursue this option from the outset.
    2. A Separation Agreement (also known as a Deed of Separation) is a legally binding contract between both parties, drafted by both parties’ Solicitors, setting out their future rights and duties to each other. The terms of the Deed of Separation can be negotiated by the Solicitors, or, by a Mediator (as outlined above).

A Deed of Separation would normally contain the following clauses:-

      1. That you both live separate and apart from and free from the martial control of each other and that you will not molest, annoy or disturb each other.
      2. Maintenance issues.
      3. The Family Home. The Courts look at the contributions made by both parties in determining the final outcome.
      4. Succession rights – husband and wife mutually renounce all rights. This means that after a legal separation, neither husband or wife are entitled to inherit form the other spouse, but your children will retain their succession rights against both of you.
      5. Pension Rights – please note that pension rights cannot be dealt with by way of Separation Agreement. A Court Order is required to change the nominated beneficiary of your pension contributions.
      6. Taxation – Separated couples who do not obtain a Judicial Separation or Divorce are still legally married and may choose to be taxed either as a couple or as separated people. Detailed taxation advices should be sought by any couple contemplating separation.

In practice, if you cannot both agree all of the terms set out above that are essential to effect a workable Separation Agreement, it is likely you will have to apply to the Courts for a Judicial Separation.

  • Judicial SeparationThis is, a Court Order for Separation, granted by a judge, usually in the Circuit Court.  You must be separated from your spouse/civil partner at least 12 months in order to initiate court proceedings.If you are not yet separated for 12 months, but wish to be fully ready and prepared, we recommend you contact us straight away, as it takes some time to gather all the relevant information and documentation, and we can then be ready to issue the court proceedings once the 12 month period has passed.

    To apply for a Judicial Separation, one of the following six grounds must apply to your case:

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

    The most common ground for the granting of a Judicial Separation is that the Court considers that a normal marital relationship no longer exists between the parties.

    This type of separation requires Circuit Court proceedings, drafted by a barrister.

    The costs of separating are entirely dependent on the level of co-operation between the parties and the value of their incomes and property, and we will write to you setting out the basis by which legal charges are incurred in cases like these, before undertaking any work on your behalf, so you can have full transparency on your legal costs, and which may help you budget accordingly.

 

Before you can apply for a Judicial Separation, we, as your Solicitors, are legally required to discuss with you:-

  1. The possibility of resolving the difficulties in your marriage.
  2. Reaching a negotiated agreement, with the help of a Mediator.
  3. Finalising a legal separation by agreement, in writing.
  4. Finalising a legal separation by way of a Court Order.

 

Your Legal / Judicial Separation Case – How We Will Help You

As your Solicitors, we do the following for you:-

  • assist you with the gathering of all relevant paperwork and information
  • carry out any Searches needed to find information (e.g. property title search)
  • brief a barrister to draft the Judicial Separation/Family Law Civil Bill (court proceedings)
  • draft other Court documents required by law in your case
  • issue and file the required court documents with the Court Office
  • serve them on the other spouse (or their solicitors)
  • deal with all correspondence and communication with the other spouse/their solicitors, on your behalf
  • deal with the other spouse/their solicitors to ensure they file the necessary documentation with the Court Office
  • deal with the other spouse/their legal team to ensure you get full financial disclosure.
  • attend Court on your behalf for any interim court appearances as necessary
  • attend and arrange any consultations required with your barrister
  • liaise with other professionals relevant in your case e.g. Auctioneers, Pension Providers, Financial Institutions, Accountants, Psychologists, Mediators, etc.
  • keep you updated on all developments and progress in your case.
  • attend any settlement negotiations with you and your barrister
  • attend and prepare for Court hearing.

Your story, and your family’s circumstances, are absolutely unique to you, and no two cases are ever the same, which is why we tailor our approach and advice in every case to suit our client’s individual needs.

Many times, our clients approach us at an early stage, for some initial advice, to explore their options, before they reach the final conclusion that sadly, their marriage cannot be saved, and Legal Separation is the route they wish to take.

This process can take some time, which is why we are happy to offer you an initial, no-obligation consultation to discuss your situation, and your requirements, before you commit to instructing us in your Legal Separation.

Contact us here today, to see how we can help you. And feel free to use our Checklist below, to get the process started.

What to bring to my first Solicitor's Consultation?

  • State/Civil Marriage Certificate
  • Any previous Court Orders
  • Any Deed of Separation or earlier or other written agreement(s)
  • Details of any children, including any special needs
  • Details of current Access arrangements (if any)
  • A written history of the relationship and its breakdown (if you wish)
  • A financial profile of husband and wife, to include:-
    • Employment status and income
    • Mortgages, debts and other liabilities (bank loans, overdrafts, etc.)
    • Properties held either jointly or separately
    • Current Maintenance arrangements (if any)
    • A list of all other assets e.g. car, savings accounts, shares, etc.
    • Details of Pensions/Insurance/Life Policies
    • Accounts, recent payslips and Statement of Earnings
    • Receipts for outgoings (groceries, utilities, etc.)

 

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