Separation Agreements

Question 1

Separation Agreements

Answer 1

A separation agreement is most usually written and embodied in a deed. It is signed by both parties. Standard clauses in separation agreements include agreement to live apart, provision for custody of and access to the children, maintenance and the use and division of matrimonial property.

If the separation agreement is made a rule of court, the spouse in receipt of maintenance has the right to have the maintenance paid through the District Court clerk and is provided with the remedy of contempt of court in the event of breach of agreement.

Question 2

Agreement to Live Apart

Answer 2

This releases spouses from having to co-habit with one another. Such a term in the agreement terminates desertion which can have implications for a deserted spouse. If the parties do not agree to this provision, they may enter a maintenance agreement which regulates financial and other arrangements. The separation agreement should contain the date on which the parties began living apart so that if one of the parties subsequently seeks a divorce, the other party cannot hinder the action by alleging that they have only lived apart since the agreement was concluded.

Question 3

Non-Molestation Clause

Answer 3

The spouses agree not to molest, annoy, disturb or interfere with the other. The most common type of molestation is physical assault or the threat of such behaviour.

Question 4

Guardianship and Custody

Answer 4

The Guardianship of Infants Act, 1964, as amended provides that both spouses are joint guardians of their children and are entitled to joint custody. Where there are children under 18 years of age, the arrangements for custody and access are detailed in the separation agreement. The parties may agree that one parent will have sole custody and meet the needs of the children on a day-to-day basis and the other parent will exercise access on specified dates and times.

It is also prudent to include provision as to whether there is agreement that a passport be obtained for a child and in whose possession the passport is retained.

he court will not enforce agreement on custody and access unless satisfied it is in the best interests of the children

Question 5

Maintenance

Answer 5

The separation agreement usually provides for the payment of maintenance by one spouse to the other and/or dependent children. The party with custody of the children is usually allocated a portion of the total amount for the children’s financial needs and agreements often detail the manner in which the maintenance is to be divided between the children. The agreement details the form, amount, duration and method of payment.

Question 6

D v. D [1991] FLJ 8,

Answer 6

the parties had entered into a separation agreement which contained provisions for the payment of maintenance by the husband to the wife. The particular clause provided for increases in accordance with inflation. The husband maintained that his financial circumstances had worsened considerably and that he was no longer able to meet his liabilities under the separation agreement. He accordingly sought an order that the maintenance payments be adjusted downwards.

Question 7

What is a dum casta Clause?Ormsby v. Ormsby (1945) 791 ILTR 97

Answer 7

Such a clause, if included, terminates the obligation of the spouse paying maintenance to the other spouse upon the latter committing adultery or cohabiting with another party. It has been held that such clauses must be an express term of the agreement as it will not be implied.

If maintenance ceases under the separation agreement in this respect, this does not prevent a spouse seeking maintenance pursuant to the Family Law (Maintenance of Spouses and Children) Act 1976.

Does not apply to maintenance for children.

Question 8

Property

Answer 8

Agreement between the parties in relation to property varies according to circumstances including the amount of property owned by the spouses.

The spouse who has transferred the marital home property may give a general consent to its future sale or disposal of any interest so that the other spouse does not have to seek such consent in the future for the purposes of execution of Family Home Protection Act Declarations.

It may be useful to draw up an inventory which is included as a schedule to the agreement and identifies which items each spouse is entitled to.

Question 9

Succession/Inheritance

Answer 9

The spouses may include a clause renouncing their respective rights to a share in the estate of the other that would otherwise accrue under the Succession Act, 1965.

Section 15(A) of the Family Law Act 1995 provides that a spouse who renounces his or her rights to succession in a separation agreement does not retain the right to apply for a share from the estate of the deceased spouse. In contrast, where Succession Act rights are extinguished by a court in judicial separation proceedings, (section 14 of the 1995 Act), pursuant to section 15A of the Family Law Act, 1995 as inserted by the 1996 Act, a spouse may retain a residual entitlement to apply for discretionary provision from a deceased spouse’s estate.

Question 10

Pensions

Answer 10

A separation agreement cannot make valid provision for a pension adjustment order.

If the parties require such an order, its terms may be agreed by the parties and a consent application brought before the court for an ancillary order pursuant to a decree for judicial separation.

Question 11

Maintenance and Taxation

Answer 11

Sections 1025 and 1026 of the 1997 Act direct that maintenance payments are to be deducted from the gross earnings of the paying spouse prior to income tax assessment. The spouse in receipt of maintenance pays income tax on the payments and the spouse who makes the payments is entitled to a tax deduction for the payments. However, maintenance payments, to the spouse in receipt of such which is designated for the children, are not taxable.

Question 12

Life Assurance

Answer 12

Provision may be included for a dependent spouse and children of the parties to benefit from a life policy upon the death of the other spouse. It is common for the parties to agree that the spouse responsible for maintenance payments will continue with payments in existing life policies or put in place a life policy in which the other spouse is named as a beneficiary.

Question 13

Remedies for Breach of Separation Agreement

Answer 13

The remedies for breach of a separation agreement are damages, specific performance, and an injunction.

Question 14

O’D (P) v. O’D (A) [1998]

Answer 14

hat a separation agreement that amounts in law to a binding contract is a bar to subsequent proceedings for judicial separation under the 1989 Act. Justifying the bar, Keane J (as he then was) stated:

First, where the agreement provides, as it invariably does, that the parties are to live separate and apart, the granting of such a decree would be superfluous. Secondly, where parties have entered into a binding contract to dispose of differences that have arisen between them as husband and wife it would be unjust to allow one party unilaterally to repudiate that agreement irrespective of whether it took the form of a compromise of proceedings actually instituted.

Question 15

Divorce

Answer 15

A separation agreement does not act as a bar to divorce proceedings. Section 20(3) of the 1996 Act requires the court, in determining what provision should be made for spouses and dependent children to have regard to the terms of any separation agreement entered into between the spouses still in force.

Question 16

K v. K [2003] 1 IR 326

Answer 16

the parties had separated in 1979 and entered into a deed of separation in 1982. Divorce proceedings were instituted by the wife in 1998. The financial situation of the parties was very different at the date of divorce to that at the date of the deed of separation. O’Neill J transferred €511,000 to the wife which measured approximately one third of the joint share of the assets. Where the separation agreement is closer in time to the application for divorce, O’Neill J in the same case stated that:

Undoubtedly in a case where the Separation Deed is of recent date it would be likely that a court would consider the terms of the Deed of Separation at an initial stage and unless there was manifest a change of circumstances such that a different provision would have been likely to have been made when the separation was entered into, the enquiry might well proceed on the basis that in the absence of any material change of circumstances that the separation having been entered into at a recent date and with the benefit of appropriate advice prima facie contains proper provision.

Question 17

O’M v. O’M

Answer 17

Circuit Court held that the absence of provisions on maintenance, custody, pensions or a full and final settlement clause indicated that the separation agreement was not a comprehensive final separation agreement and its terms could be revisited in the divorce action before the court.

Question 18

A v A

Answer 18

In making no order for ancillary relief in favour of the wife, Hardiman J explained as follows:

I must in justice record my view that any difficulties which the wife now experiences are wholly of her own making and that the husband has contributed to them in no way whatever. Equally, the wife contributed to the husband’s present state of prosperity in no way whatever…In all the circumstances I do not consider it proper, that is “fit, apt or suitable”, much less “correct or in conformity with rule”, to make ancillary orders against the husband in the circumstances of this case. Still more fundamentally, I do not consider it just to do so and therefore I am precluded from doing so by the terms of section 20(5). I will accordingly grant a decree of divorce and make no further ancillary order…

Question 19

G v. G [2011] IESC 40

Answer 19

General principles of separation agreements found in the above case:

1. A separation agreement is an extant legal document entered into with consent by both parties, and it should be given significant weight.
   Irish law does not establish a right to a “clean break”. However, it is a legitimate aspiration.
2. If the circumstances of the spouses, one or both, have changed significantly then the Court is required to consider all the circumstances carefully. However, the requirement is to make proper provision and it is not a requirement for the distribution of wealth.
3. Relevant changed circumstances may include illness or the bursting of a property bubble which has altered the value of the assets so as to render an earlier provision unjust.

4 If, in the period subsequent to the conclusion of a separation agreement, one spouse becomes very wealthy, there is no right to an automatic increase in money or other assets for the other spouse.

5. Assets which were inherited will not be treated as assets obtained by both parties in a marriage. The distinction in the event of separation or divorce will all depend on the circumstances.
6. A party should not be compensated for their own incompetence or indiscretions to the detriment of the other party.
7. The facts and circumstances to be considered will include the length of time since the separation agreement was entered into. The greater the length of time which has passed, barring catastrophic circumstances, the less likely a court will be to alter arrangements.