What do I need to know about separation?
Can I get legal aid for a separation?
What do I need to know about divorce?
What do I do if I’ve been served with divorce papers?
What do I need to know about separation?
A separation agreement means that your marriage or civil union still legally exists, but you have both agreed to live apart. If this is what you want to do, you can make a separation agreement or apply to the Family Court for a separation order. It is basically to record the fact that you have separated, and can be useful later on if problems occur and you need to go to court, or if you later decide to apply for a divorce.
A separation agreement can be a written or a verbal agreement. It’s a good idea to have it in writing to avoid future conflicts or misunderstandings. It should state:
- The fact that you and your spouse are separating
- The date of your separation
- Any day-to-day care issues
- How contact with the children will be arranged (custody and access)
If the agreement deals with how to divide your property, it has to be in writing and a lawyer has to certify that you have both received individual legal advice. It is not necessary to have a separation agreement to dissolve your marriage/union, or qualify for the DPB.
A separation order is a Family Court order stating that you and your spouse live apart, but that your marriage still legally exists. You can apply for one if you and your spouse cannot agree to separate. You can also use your separation order as proof that you’ve lived apart for at least two years if you later decide to divorce.
If you apply for a separation order, the Court will arrange for free counselling for you and your spouse.
The Ministry of Justice website has pamphlets on:
For help with or tips on parenting through separation, you can attend a free information programme by Barnados. Couples can also get free and confidential counselling through the Family Court – to find out how to get this service, see our Relationship counselling section.
Can I get legal aid for a separation?
Yes, you can. You can get legal aid for disputes about:
- Separation
- Guardianship
- Custody
- Access to children
- Matrimonial property
- Maintenance
- Child support
You can’t get legal aid for a divorce though. More information on legal aid is in the legal aid section.
What do I need to know about divorce?
The only way to get a divorce is to prove that your marriage has broken down and is at an end – and the only way to prove this is by living apart for at least two years.
Once you’ve been separated for two years you can contact the Family Court to get a divorce. You then need to apply for dissolution of marriage. You and your spouse can apply together with a joint application, or you can apply alone.
If you want information on how the law on dissolution applies to you, you should get advice from a specialist family lawyer. You can find a family court lawyer on the family law website.
You can apply for a dissolution order using forms on the Family Court website or from your nearest Family Court office. You don’t need a lawyer to make the applications.
Once you’ve lodged the application for a dissolution order, either a Court Registrar or a Judge will process it. The Judge or Registrar will make the dissolution order (divorce final) if he or she is satisfied that;
- you have been living apart for two or more years, and
- you’ve made arrangements for the care of your children, or there is a good reason why no arrangements have been made
A court registrar will deal with the application if:
- You or your spouse agree to a divorce but don’t want to appear in Court
- Your spouse or partner doesn’t respond after being served with the application
- Both of you agree to divorce (with a joint application) and don’t want to go to Court
If you don’t want to appear in court before a judge to finalise your divorce, you have to include a sworn written statement (affidavit) with your application, stating that;
- at the time the application is filed, you will have been living apart for at least two years, and
- you’ve made arrangements for the care of your children, or there is a good reason why you haven’t made arrangements
The order will take effect one month after it’s made. If neither of you oppose the order, and you need the order to be effective straight away, you can ask the Judge to make the order immediate.
When the court makes a dissolution order, you will have to pay a filing fee, while the cost of hiring a lawyer changes from case to case. To find an appropriate lawyer, see our Lawyers section.
What do I do if I’ve been served with divorce papers?
If you’ve been ‘served’ a copy of the application for dissolution of marriage, it means your partner has applied for a divorce. Once you receive the papers you have 21 days to defend the application.
If you oppose the application for a divorce, you need to file a Request for Appearance if you want to make your case in Family Court, or a Notice of Defence if you want the court to consider the case in your absence. You can oppose the order on the grounds that you haven’t been separated for the necessary two years, or if adequate provisions have not been made to care for your children. The application will go to a Court hearing before a Family Court Judge. At the hearing, the Judge will make the dissolution order (divorce final) if he or she is satisfied that;
- you have been living apart for two or more years, and
- you’ve made arrangements for the care of your children, or there is a good reason why no arrangements have been made
If you don’t want to oppose the application, just do nothing. The application will be handled by a Court Registrar rather than a Judge, you won’t have to go to court, and your divorce will still be final (after a one month wait).