Judicial Separation and Family Law Reform Act, 1989

Cited as:IR No. 6/1989
Jurisdiction:Ireland


Judicial Separation and Family Law Reform Act, 1989

1989 6

AN ACT TO AMEND THE GROUNDS FOR JUDICIAL SEPARATION: TO FACILITATE RECONCILIATION BETWEEN ESTRANGED SPOUSES: TO PROVIDE FOR THE MAKING OF ANCILLARY ORDERS IN SEPARATION PROCEEDINGS: TO AMEND THE LAW RELATING TO THE COURTS' FAMILY LAW JURISDICTION AND TO PROVIDE FOR CONNECTED MATTERS.

[19 April 1989]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

0 The obtaining of a Decree of Separation

PART 0

The obtaining of a Decree of Separation

S-1 Definition.

1 Definition.

Definition.

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

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

S-2 Application for a decree of judicial separation.

2 Application for a decree of judicial separation.

Application for a decree of judicial separation.

(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 and the respondent consents to a decree being granted;

(e) subject to subsection (2) of this section, that the spouses have lived apart from one another for a continuous period of at least three years immediately preceding the date of the application;

(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) or (e) 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 not living with each other at the time the application is made.

(3) ( a) In this section spouses shall be treated as living apart from each other unless they are living with each other in the same household, and references to spouses living with each other shall be construed as references to their living with each other in the same household.

(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.

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

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

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

(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—

(i)

is satisfied that such provision 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.

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

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

Supplemental provisions as to proof of adultery and unreasonable behaviour.

(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.

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

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

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

(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 and give to him the names and addresses of persons and organisations qualified to provide a mediation service, 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 certificate 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 not so certify, 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) Provision shall be made by rules of court for the certification required for the purposes of subsection (2) of this section.

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

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

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

(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 and give to him the names and addresses of persons and organisations qualified to provide a mediation service, 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 certificate 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 not so certify, 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) Provision shall be made by rules of court for the certification required for the purposes of this section.

S-7 Adjournment of proceedings to assist reconciliation or agreements on...

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