Separation Agreement FAQ - Ireland

A separation agreement is a legally binding contract setting out each party's rights and obligations to the other. If agreement can be reached reasonably quickly between the parties and a separation agreement is drawn up, it is cheaper and less stressful than going through a court case. Many couples formalise their separation in this way.

The main issues dealt with in a separation agreement are as follows:

• An agreement to live apart;
• Agreed arrangements in relation to custody and access to children
• The occupation and ownership of the family/shared home and any other property;
• Maintenance and any lump sum payments;
• Indemnity from the debts of the other spouse/civil partner; and
• Property division.

If you are planning to separate, then a separation agreement can help you address issues on custody, maintenance and family assets instead of having to go to court to resolve such issues. In this way, you will be avoiding costly litigation fees.

When the document has been drawn up and signed by both parties it becomes a legally binding written contract. It is also called a deed of separation. It is an alternative to a judicial separation.

A separation agreement can later be made into a rule of court by application to the courts if you need to enforce under specific legislation.

Courts are likely to refuse to recognise your separation agreement in the following situations:

• the terms of the agreement are not in the best interest of your children;
• a spouse has not fully disclosed certain assets or liabilities; or
• the separation agreement is plainly unfair (e.g. one spouse waives his/her right to maintenance without compensation).

This separation agreement is intended for married spouses or civil partners who can agree on the terms of their separation and accept such a settlement. The essence of a separation agreement is that it is an agreement. Both parties must consent to the terms of the agreement.

For the purposes of this separation agreement spouses are individuals who are legally married and who are separated or considering separation.

This separation agreement is intended for married couples only. This document may not be suitable for common-law couples.

If you and your spouse later reconcile then you and your spouse should draw up another agreement canceling the separation agreement.

Custody refers to the day-to-day care, residency and upbringing of dependent children. The children reside permanently with the parent who has sole custody and the other parent is granted access to the children at agreed times. It is also possible for parents to have joint custody of their children after separation or divorce and for the children to spend an equal amount of time with each parent if the parents can agree and arrange this.

Custody is different than guardianship which refers to the legal responsibility of parents to make decisions and perform duties in relation to their child's upbringing. It is possible for a parent to have guardianship over their children without having custody and to have a say in major decisions in their life such as where they live, schooling, religion, and medical procedures.

Access is the right of visitation with the child and is viewed by the courts as much a right of the child to see its parents as a right of the parents. The access or contact routine is determined on the basis of what is in the best interests of the child. It can include the child staying overnight either occasionally, on alternate weekends or during school holidays and for the parent and child going on holidays together.

Courts can always change custody arrangements if the arrangements do not seem to be in the best interests of the children.

If you and your spouse are both on good terms and have little problems agreeing on visitation, it may be sufficient to provide a general description of visitation (e.g. “The Wife will have reasonable and generous access.”) On the other hand, if you and your spouse have difficulties coming to agreements, it is best to clearly specify the visitation schedule. Set out the arrangement for regular visits, holiday and school visits as well as pick up and drop off schedules. Ensure that your description is clear and capable of being understood by third parties. Also, ensure that the schedule is fair and reasonable to prevent it from being challenged by the courts.

Child maintenance refers to monetary payments that are paid on an ongoing basis for the maintenance of a child or children. While each parent has a legal obligation to support their children it is usually the custodial parent who incurs most of the expenses of child rearing (including providing housing, food, clothing, schooling and transportation). To offset this imbalance, the non-custodial parent is expected to contribute to their children’s expenses in the form of child maintenance paid to the custodial parent.

Child maintenance is typically paid in monthly installments, however, LawDepot’s separation agreement allows for weekly, bi-weekly or monthly installments.

Maintenance can be awarded to a spouse/civil partner for their own benefit and/or for the benefit of a dependent child who is under the age of 18, or 23 if the child is in full-time education.

If the child is over 18 and under 23 and the financial circumstances do not allow him/her to attend further education, maintenance can be applied for in order to facilitate further education.

If the child has a mental or physical disability to such a degree that it will not be possible for the child to maintain him/herself fully, then there is no age limit for seeking maintenance for their support.

Spousal maintenance or alimony is financial support that is sometimes paid by one spouse to the other spouse when their marriage breaks down. The idea behind spousal maintenance is to redistribute wealth such that one of the spouses does not face economic inequality at the end of the relationship.

Spousal maintenance is not the same as child maintenance. Child maintenance is a financial obligation where one parent has a duty to make payments for the support of his or her children whereas spousal maintenance refers to payments made to a spouse in order to relieve financial inequality at the end of a relationship. Children, being the responsibility of both parents are always entitled to child maintenance whereas spousal maintenance is usually dependent on need and ability to pay.

The law treats child maintenance payments and spousal maintenance payments differently. Child maintenance is not a payment that affects taxes. The payment is not deductable by the person paying child maintenance and is not viewed as taxable income by the person receiving the payment. In contrast, spousal maintenance is usually tax deductable for the spouse that is paying and is treated as taxable income by the spouse receiving the payment.

You may want to consider the following factors when addressing spousal maintenance:

• Length of the marriage – Usually the longer a couple is married, the longer one spouse becomes financially dependent on the other.
• Former standard of living – Generally courts like to see the financially dependent spouse live according to the standard of living he/she has become accustomed to during the marriage.
• Future financial prospects of the paying spouse – Spouses who are likely to be earning more in the future are often expected to pay more spousal maintenance.
• Future financial prospects of the receiving spouse – Spouses who are not likely to earn as much in the future, may require more maintenance.
• The age and health of the receiving spouse – Younger spouses who are in good health are generally viewed to require shorter periods of support as they can still enter the work force and find a means of providing for themselves. On the other hand, if the spouse is older or in poor health, they may require more support as they may not be as likely to provide for themselves.
• Whether the receiving spouse made any contributions to the paying spouse’s education or career – If the spouse who is requiring support has made contributions to the other spouse’s career, or has suffered economic disadvantage because of a career compromise (i.e. raising children of the marriage), then that spouse can usually be expected to be compensated accordingly by the other spouse.

Under Irish law, there is no clean break from the obligation to support one's spouse/civil partner and children. A clause in a separation agreement stating that a spouse/civil partner will not seek maintenance in the future or seek increased maintenance is unenforceable. The spouse/civil partner can apply for a maintenance order and a court will consider this application, particularly if the circumstances of the parties have changed or the spouse/civil partner who executed the agreement did not have legal advice at the time.

You are only barred from making an application if you have remarried or entered into a new civil partnership.

You should sit down with your spouse and discuss how you wish to divide your assets. There are several ways to divide your assets which will depend entirely on your set of circumstances. Some couples may be content to leave the relationship with property that is held solely in their name. Other couples may see such a distribution scheme as unfair and they may want to want to equalise the value of what each spouse receives instead. The most important thing to remember is to be open and honest, disclosing all assets. Below are some suggestions to help you get started:

• Come up with a list of all your assets – List all assets that you own jointly.
• Appraise the value of your assets – Put a price on the assets you are distributing. For larger assets such as real estate (or anything else that may be difficult to value), you should seek an expert opinion.
• Decide who will get what – Is there a logical owner to certain property? Go through your list of assets and choose who has a reason for receiving the item. You may want to consider exchanging one larger item for several smaller items to ensure an equal split.

A list of assets can be found on our Property Division Checklist.

Yes. You MUST disclose all assets to your spouse. Your separation agreement may become invalid if you do not disclose all your assets.

While it is not absolutely necessary to have a lawyer review your separation agreement, it is a good idea. This is especially the case if you are confused or uncertain about any of the clauses. If you require a review, ensure that you have your agreement reviewed by your own lawyer (not your spouse’s) before you sign the agreement. Getting independent legal advice is also a good idea because it prevents parties from later saying they were at a disadvantage because they didn’t understand the agreement.

You must choose a competent adult as your witness.

You require at least two copies: one for yourself and one for your spouse. Ensure that you print copies of the agreement before you sign the agreement so that each copy will have an original signature.