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G A Z E T T E
N O V E M B E R
1976
SOCIETY OF YOUNG SOLICITORS
3. SEPARATION AGREEMENTS
A Separation Agreement is essentially an agreement
between a husband and wife to live separately and
apart. Like any other agreement it is governed by the
general Law of Contract and can, therefore, be in
written or oral form. Advisedly, however, if such
matters as the maintenance of the wife, the welfare
of the children and the division of the matrimonial
property are to be provided for then the Agreement
should be reduced to writing and incorporated in a
Deed.
The whole subject of Separation Agreements was
very comprehensively dealt with in the lecture entitled
"The Drafting of Separation Agreements" delivered by
Michael V. O'Mahony to the Society in Galway in
November 1975 (Lecture 93) and his paper merits
careful consideration. For those who have the mis-
fortune not to possess a copy of his paper the following
is a brief summary.
(For further details, see Gazette, March 1976, page
33).
Drafting of Separation Agreements
Any agreed terms, provided they are legal, can be
included in a Separation Agreement but the most com-
mon clauses in a Separation Agreement would cover
the following: —
1. Introductory Recitals. These should include a recital
that the husband and the wife have agreed to live
apart as the agreement to live apart is a pre-
requisite of all Separation Agreements.
2. Non-Molestation whereby each party agrees not to
molest, annoy, disturb or interfere with the other.
3. The Maintenance of the Wife. This should have
particular regard to: —
(a) The extent of the husband's liability for main-
tenance;
(b) Whether the maintenance payments should
cease or vary:—
(i) in the wife's lifetime or widowhood.
(ii) in the event of a change in the husband's
income.
(iii) in the event of inflation.
(iv) in the event of an intervening Court Order
for maintenance.
(v) In the event of an intervening Judicial Sep-
aration or the resumption of cohabitation.
(vi) In the event of the wife's breach of the
"dum casta" clause or the breach of any
other clause of the Agreement.
4. The custody and maintenance of the children, the
rights of the access and the extent of each spouse's
responsibility.
5. The division of the matrimonial property having
particular regard to the matrimonial home and its
upkeep.
6. The mutual renunciation of rights under the Suc-
cession Act 1965.
7. Arbitration in the event of dispute as to the terms
or the implementation of the terms of the Agree-
ment.
Termination of Separation Agreements
The discharge of Separation Agreements is governed
by the law relating to discharge of contracts generally
and would normally take effect either by (a) agreement
between the parties or (b) breach by one of the parties
of one of the fundamental provisions of the agreement.
Taxation
Tax problems can arise on the maintenance pay-
ments by the husband to the wife and careful consider-
ation should be given to the liability for tax on such
payments and to the precise wording of the mainten-
ance clause in the agreement.
Legality of Separation Agreements
A Separation Agreement, like any other form of
Contract, may be void or voidable.
It may, for
example, be void on the grounds of mistake or void-
able on the grounds of undue influence.
Representation of Husband and Wife
It is to be strongly recommended that the husband
and the wife be separately advised in negotiating the
terms of the Separation Agreement.
Costs
The costs of a Separation Agreement will naturally
depend on its complexity but it is wise to include
a clause as to liability for payment of costs in the
Agreement.
4. DIVORCE A MENSA ET THORO
Since the Matrimonial Causes and Marriage Law
(Ireland) Act, 1870, the Civil Courts have jurisdiction
in petitions for divorce
a mensa et thoro.
Again, it
must be remembered that a Decree of Divorce
a mensa
et thoro
is not a dissolution of marriage and therefore
does not give the parties to the divorce the right to
re-marry. A Decree of Divorce
a mensa et thoro
is often
described as judicial separation, as it separates the
parties to a marriage rather than dissolving the
marriage.
The grounds for obtaining a divorce
a mensa et
thoro
are :
a. Adultery.
b. Cruelty.
c. Desertion.
d. Failure to comply with an Order for the
restitution of conjugal rights.
The jurisdiction of the Courts is the domicile of the
husband. Under Irish Law, the domicile of the wife
is automatically the domicile of her husband and she
is incapable of having a separate domicile.
Procedure: The procedure is contained in the Rules
of the Superior Courts Order 70, and the procedure
is by petition and is the same as the one used in
petitions for nullity.
Interim Relief: Often during the proceedings, an
interim application for alimony
pendente lite
is
brought. This usually takes the form of the Petitioner/
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