Judicial Separation and Family Law Reform Act , 1989

PART I The obtaining of a Decree of Separation

1. Definition.

1.—In this Act, except where the context otherwise requires—

“the court” means the court having jurisdiction under Part III of this Act.

2. Application for a decree of judicial separation.

2.—(1)An application by a spouse for a decree of judicial separation from the other spouse may be made to the court having jurisdiction to hear and determine proceedings under Part III of this Act on one or more of the following grounds:

(a)that the respondent has committed adultery;

(b)that the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent;

(c)subject to subsection (2) of this section, that there has been desertion by the respondent of the applicant for a continuous period of at least one year immediately preceding the date of the application;

(d)subject to subsection (2) of this section, that the spouses have lived apart from one another for a continuous period of at least one year immediately preceding the date of the application F1[…];

(e)F1[…]

(f)that the marriage has broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application.

(2)In considering for the purposes of subsection (1) of this section, whether—

(a)in the case of paragraph (c) of that subsection, the period for which the respondent has deserted the applicant, or

(b)in the case of paragraph (d) F1[…] of that subsection, the period for which the spouses have lived apart,

has been continuous, no account shall be taken of any one period (not exceeding 6 months) or of any two or more periods (not exceeding 6 months in all) during which the spouses resumed living with each other, but no such period or periods during which the spouses lived with each other shall count as part of the period of desertion or the period for which the spouses have lived apart, as the case may be:

Provided that this subsection shall only apply where the spouses are F2[living apart from one another] at the time the application is made.

(3)F2[(a)For the purposes of this section—

(i) spouses who live in the same dwelling as one another shall be considered as living apart from one another if the court is satisfied that, while so living in the same dwelling, the spouses do not live together as a couple in an intimate and committed relationship, and

(ii) a relationship does not cease to be an intimate relationship merely because it is no longer sexual in nature.]

(b)In this section “desertion” includes conduct on the part of one spouse that results in the other spouse, with just cause, leaving and living apart from that other spouse.

3. Grant of decree of judicial separation, custody, etc. of children.

3.—(1)Where, on an application under section 2 of this Act, the court is satisfied that any of the grounds referred to in subsection (1) of that section which have been relied on by the applicant have been proved on the balance of probabilities, the court shall, subject to subsection (2) of this section and sections 5 and 6 of this Act, grant a decree of judicial separation in respect of the spouses concerned.

(2)(a)Where there are, in respect of the spouses concerned, any dependent children of the family, the court shall not grant a decree of judicial separation unless the court—

F3[(i)is satisfied that such provision exists or has been made, or]

(ii)intends by order upon the granting of the decree to make such provision,

for the welfare of those children as is proper in the circumstances.

(b)In this subsection—

“dependent children of the family” has the same meaning as it has for the purposes of Part II of this Act;

“welfare” comprises the religious and moral, intellectual, physical and social welfare of the children concerned.

(3)Upon the granting of a decree of judicial separation by the court, the court may, where appropriate, by order give such directions under section 11 of the Guardianship of Infants Act, 1964, as it thinks proper regarding the welfare or custody of, or right of access to, an infant (being an infant within the meaning of that Act) as if an application had been made under that section.

4. Supplemental provisions as to proof of adultery and unreasonable behaviour.

4.—(1)Where the spouses have lived with each other for more than 1 year after it became known to the applicant that the respondent had committed adultery the applicant shall not be entitled to rely on that adultery for the purposes of section 2 (1) (a) although that adultery may be one of the factors that the applicant may rely on for the purposes of section 2 (1) (b) together with other matters.

(2)Where the applicant alleges that the respondent has behaved in such a way that the applicant cannot reasonably be expected to cohabit with him but the spouses have cohabited for a period or periods after the date of the occurrence of the final incident relied on by the applicant and held by the court to support his allegation, such cohabitation shall be disregarded in determining for the purpose of section 2 (1) (b) of this Act whether the applicant cannot be reasonably expected to live with the respondent if the length of the period or of those periods of cohabitation together was or were 6 months or less.

5. Safeguards to ensure applicant's awareness of alternatives to separation proceedings and to assist attempts at reconciliation.

5.—(1)A solicitor, if any, acting for an applicant for a decree of judicial separation shall, prior to the making of an application for a decree of judicial separation—

(a)discuss with the applicant the possibility of reconciliation and give to him the names and addresses of persons qualified to help effect a reconciliation between spouses who have become estranged, and

(b)discuss with the applicant the possibility of engaging in mediation to help effect a separation on an agreed basis with an estranged spouse F4[, give to the applicant the names and addresses of persons who provide a mediation service and inform the applicant of the matters referred to insections 10and11of the Mediation Act 2017], and

(c)discuss with the applicant the possibility of effecting a separation by the negotiation and conclusion of a separation deed or written separation agreement.

(2)An application for judicial separation shall be accompanied by a F4[statutory declaration made by the solicitor], if any, acting on behalf of the applicant that he has complied with the provisions of subsection (1) of this section and, where a solicitor does F4[not so declare,] the court may adjourn the proceedings for such period as it deems reasonable for the applicant’s solicitor to discuss with the applicant the matters referred to in that subsection.

(3)F5[…]

6. Safeguards to ensure respondent’s awareness of alternatives to separation proceedings and to assist attempts at reconciliation.

6.—(1)A solicitor, if any, acting for a respondent in an application for a decree of judicial separation shall, as soon as possible after receiving instructions from the respondent—

(a)discuss with the respondent the possibility of reconciliation and give to him the names and addresses of persons qualified to help effect a reconciliation between parties to a marriage who have become estranged, and

(b)discuss with the respondent the possibility of engaging in mediation to help effect a separation on an agreed basis with an estranged spouse F6[, give to the respondent the names and addresses of persons who provide a mediation service and inform the respondent of the matters referred to insections 10and11of the Mediation Act 2017], and

(c)discuss with the respondent the possibility of effecting a separation by the negotiation and conclusion of a separation deed or written separation agreement.

(2)An Entry of Appearance or a Notice of Intention to Defend an application for judicial separation shall be accompanied by a F6[statutory declaration made by the solicitor], if any, acting on behalf of the respondent, that he has complied with the provisions of subsection (1) of this section and where a solicitor does F6[not so declare,] the court may adjourn the proceedings for such period as it deems reasonable for the respondent's solicitor to discuss with the respondent the matters referred to in that subsection.

(3)F7[…]

7. Adjournment of proceedings to assist reconciliation or agreements on separation.

7.—(1)Where an application is made under this Act to the court for a decree of judicial separation, the court shall give consideration to the possibility of a reconciliation of the spouses concerned and, accordingly, may adjourn the proceedings at any time for the purpose of affording the spouses an opportunity, if they both so wish, to consider a reconciliation between themselves with or without the assistance of a third party.

(2)If during any adjournment of proceedings to which subsection (1) of this section relates the spouses resume living with each other, no account shall be taken of that fact for the purposes of those proceedings.

(3)Where on an application made under this Act for a decree of judicial separation it appears to the court that no reconciliation of the spouses concerned is possible, it may adjourn or further adjourn the proceedings for the purpose of affording the spouses an opportunity, if they both so wish, to establish agreement (with or without the assistance of a third party) on the terms, so far as is possible, of the separation.

(4)If an adjournment has taken place by virtue of subsection (1) or (3) of this section, either or both of the spouses may request that the hearing of the application be proceeded with and, without prejudice to subsection (5) of this section, the court shall resume hearing the application as soon as is practicable.

(5)The power of adjournment exercisable under subsections (1) and (3) of this section is in addition to and not in substitution for any other power of adjournment exercisable by the court.

(6)Where the court adjourns proceedings under subsection (1) or (3) of this section, it may at its discretion advise the spouses concerned to seek the assistance of a third party for the purpose set out in the appropriate subsection.

(7)F8[…]

7A. F9[Non-admissibility as evidence of certain communications relating to reconciliation or separation.

7A.—An oral or written communication between either of the spouses concerned and a third party for the purpose of seeking assistance to effect a reconciliation or to reach agreement between them on some or all of the terms of a separation (whether or not made in the presence or with the knowledge of the other spouse), and any record of such a communication, made or caused to be made by either of the spouses concerned or such a third party, shall not be admissible as evidence in any court.]

8. Effect of judicial separation and rescission of decree of separation and ancillary orders upon reconciliation.

8.—(1)Where the court grants a decree of judicial separation it shall no longer be obligatory for the spouses who were the parties to such proceedings to cohabit.

(2)Following the granting of a decree of judicial separation the applicant and the respondent in the separation proceedings may at any future date by consent apply to the court to rescind the decree of separation granted and such order of rescission shall be made by the court upon it being satisfied that a reconciliation has taken place between the applicant and the respondent and that they have already resumed or again wish to resume cohabiting as F10[spouses of each other].

(3)Upon making an order of rescission under subsection (2) of this section the court may also make such necessary ancillary order or orders as it deems proper in the circumstances with regard to any orders previously made under Part II of this Act.

9. Abolition of decree of divorce a mensa et thoro, etc.

9.—(1)After the commencement of this Act, no action shall lie for divorce a mensa et thoro.

(2)Subsection (1) of this section shall not have effect in relation to any action instituted before the commencement of this Act.

PART II Ancillary Financial, Property, Custody and Other Orders

10. Definitions (Part II).

10.—F11[…]

11. Preliminary orders in judicial separation proceedings.

11.—F12[…]

12. Making of applications for preliminary orders.

12.—F13[…]

13. Maintenance pending suit, etc.

13.—F14[…]

14. Periodical payments and lump sum orders.

14.—F15[…]

15. Property adjustment orders.

15.—F16[…]

16. Miscellaneous ancillary orders.

16.—F17[…]

17. Order extinguishing succession rights.

17.—F18[…]

18. Orders for sale of property.

18.—F19[…]

19. Additional family home jurisdiction.

19.—F20[…]

20. Provisions relating to maintenance, property and other orders.

20.—F21[…]

21. Retrospective maintenance orders.

21.—F22[…]

22. Variation and discharge of financial and property orders.

22.—F23[…]

23. Child maintenance.

23.—F24[…]

24. Transmission of periodical payments through District Court clerk.

24.—F25[…]

25. Amendment of section 3 of Family Law (Maintenance of Spouses and Children) Act, 1976.

25.—(1)Subject to subsection (2) of this section, section 3 (1) of the Family Law (Maintenance of Spouses and Children) Act, 1976, is hereby amended by the deletion in the definition of “antecedent order” of—

and the substitution of—

(2)Subsection (1) of this section shall not affect the application of the Family Law (Maintenance of Spouses and Children) Act, 1976, to an order for payment of permanent alimony in force at the commencement of this Act.

26. Payments to be made without deduction of income tax.

26.—F26[…]

27. Application of maintenance and periodical payments orders to men of Defence Forces.

27.—F27[…]

28. Amendment of Enforcement of Court Orders Act, 1940.

28.—F28[…]

29. Voidance of transactions intended to prevent or reduce financial relief.

29.—F29[…]

PART III Court Jurisdiction

30. Definition (Part III).

30.—In this Part “family law proceedings”, in relation to a court, means proceedings before a court of competent jurisdiction under—

(a)this Act,

(b)the Adoption Acts, 1952 to 1988,

(c)the Family Home Protection Act, 1976,

(d)the Family Law (Maintenance of Spouses and Children) Act, 1976,

(e)the Family Law (Protection of Spouses and Children) Act, 1981,

(f)the Family Law Act, 1981,

(g)the Guardianship of Infants Act, 1964,

(h)the Legitimacy Declaration Act (Ireland), 1868,

(i)the Married Women’s Status Act, 1957, or

(j)the Status of Children Act, 1987, F30[and includes proceedings relating to nullity of marriage]

or between spouses under the Partition Act, 1868, and the Partition Act, 1876, where the fact that they are married to each other is of relevance to the proceedings.

31. Courts, jurisdiction and venue.

31.—(1)The Circuit Court shall be known as “the Circuit Family Court” when exercising its jurisdiction to hear and determine family law proceedings or, where provided for, when transferring family law proceedings to the High Court.

(2)Subject to the other provisions of this section, the Circuit Family Court shall, concurrently with the High Court, have jurisdiction to hear and determine proceedings under this Act for a decree of judicial separation.

(3)Where in proceedings under this Act for a decree of judicial separation an order could be made in respect of land whose F31[market value] exceeds F31[€3,000,000] and an application commencing those proceedings is made to the Circuit Family Court, that Court shall, if the respondent so requires before the hearing thereof, transfer those proceedings to the High Court, but any order made (including an interim order) or act done in the course of those proceedings before such transfer shall be valid unless discharged or varied by order of the High Court.

(4)The jurisdiction referred to in subsection (2) of this section shall only be exercisable where either of the spouses is domiciled in the State on the date of the application commencing proceedings or is ordinarily resident in the State throughout the period of one year ending on that date.

(5)The jurisdiction referred to in subsection (2) of this section shall, in the Circuit Family Court, be exercised by the judge of the circuit where either spouse to the proceedings ordinarily resides or carries on any profession, business or occupation.

F32[(6) In this section "market value" means, in relation to land, the price that would have been obtained in respect of the unencumbranced fee simple were the land to have been sold on the open market, in the year immediately preceding the bringing of the proceedings concerned, in such manner and subject to such conditions as might reasonably be calculated to have resulted in the vendor obtaining the best price for the land.]

32. Hearing of proceedings.

32.—The Circuit Family Court shall sit to hear and determine proceedings instituted under this Act and under the Acts F33[and proceedings] referred to in section 30 of this Act in a different place or at different times or on different days from those on which the ordinary sittings of the Circuit Court are held.

33. Conduct of family proceedings in Circuit and High Courts.

33.—(1)Circuit Family Court proceedings shall be as informal as is practicable and consistent with the administration of justice.

(2)Neither judges sitting in the Circuit Family Court nor barristers nor solicitors appearing in such courts shall wear wigs or gowns.

(3)Family law proceedings before the High Court shall be as informal as is practicable and consistent with the administration of justice.

(4)In hearing and determining such proceedings as are referred to in subsection (3) of this section neither judges sitting in the High Court nor barristers nor solicitors appearing in such proceedings shall wear wigs or gowns.

34. Privacy.

34.—Proceedings under this Act shall be heard otherwise than in public.

35. Costs.

35.—The costs of any proceedings under this Act shall be at the discretion of the court.

36. Rules of court.