Is it all picture and no sound and you are separated and living in the same house?
This came up recently in a case where a couple decided they were not able to live together as Man and Wife and they applied for Legal Separation. As you may know a couple must apply for separation first before you can proceed any further towards a Divorce.
The legislation lays out quite clearly that for Divorce you must be separated for four over the past five years prior to the date of Application.
Understand the difference between Separation and Divorce. With Separation you’re still in Law married to each other but the deed of Separation regulates the relationship between the two of you while you are living separate and apart.
Usually one party moves out of the property both resided in before they decided to separate. In that case it is quite clear that the parties did live separate and apart to qualify. In some parts of Ireland if the court deals with separation only they would ask that the couple would be living separate and apart from one year prior to the court application. This is not a hard and fast rule around the country it depends on different interpretations of the law by different judges. All of these cases are dealt with in the Circuit Court.
The issue which has come up is where two parties live separately but they’ve agreed that the marriage is broken down. They will not reconcile but may remain living in the same house and can that count for “living separate and apart” to meet the terms of the Act?
I’ve spoken to practitioners in relation to this issue and the general agreement is that living in separate bedrooms will be accepted by the court as living separately for the purposes of the required period of time under the legislation. If this is in dispute by either party it would seem it would be necessary for that party to give evidence to the satisfaction of the court that despite living in separate bedrooms the parties were not living separate lives.
Again each case is different. People’s circumstances are different and indeed the way they come across to the impartial presiding judge who has to decide if they qualify under the legislation are all relevant factors.
One thing is certain if a couple are in difficulties and one party does not wish to stay in the marriage no Court will force them back into the marriage . A court may adjourn proceedings to allow discussion between the parties to see if some compromise can be arranged. The court will always facilitate delay to help parties go to Counselling or Mediation. This may be a less stressful situation than a full court hearing with evidence been given about conduct in the marriage. Even though the hearing is in private it is not easy to have your personal life outlined to total strangers.
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