Separation agreements in Ireland: what a deed of separation covers and why there is no template here

A separation agreement is the way most Irish couples settle the practical side of a split without going to court. It is a contract between the two of you about children, money, the home and what happens next. This guide explains what it is, what it can and cannot do, and what goes into one.

You may have arrived here looking for a template. There is a checklist of clauses below instead, and the section after it explains why.

What a separation agreement is

The Courts Service calls it a Deed of Separation and describes it as "a legally binding agreement" signed by both parties. It records the terms on which you will live apart. The usual subjects are:

• arrangements for children
• maintenance
• the family home
• money, assets and pensions

You can negotiate the terms yourselves, in mediation, or through solicitors. Whichever way the terms are reached, the finished document is normally drawn up as a deed and signed by both spouses, each having had independent legal advice.

Because it is a contract, it is enforceable like one. If one spouse stops paying maintenance that the deed provides for, the other can sue on the agreement.

What it cannot do

Two limits come from the Courts Service's own description, and they shape every decision about whether an agreement is enough on its own.

It is not a court order and does not allow either partner to remarry. Your marital status is unchanged. Only a decree of divorce ends the marriage.

It cannot split a pension. A pension adjustment order under section 17 of the Family Law (Divorce) Act 1996 (or the equivalent provision for judicial separation) can only be made by a court. The trustees of a pension scheme will not divide a pension on the strength of a private contract. A deed can record that you both intend to seek a pension adjustment order on divorce, and in what proportions, but that is a promise to ask the court, not a division.

Two further limits are practical rather than legal. An agreement cannot bind a future divorce court: the judge must still be satisfied that proper provision has been made under section 20 of the 1996 Act, although an agreement made with legal advice carries real weight. And it cannot bind third parties such as a mortgage lender, who must separately agree to any change in who is on the mortgage.

Why there is a checklist here, not a template

Searches for "separation agreement template Ireland" are common, and it is worth being clear about why this site does not offer one.

First, a separation agreement is a contract about your whole financial life. The home, the mortgage, maintenance for years to come, who keeps which debts, what happens to savings, how pensions will eventually be divided, and what happens if one of you dies. A template written for nobody in particular either leaves those out or guesses at them. The clauses that matter most are the ones that fit your facts, and those cannot be pre-written.

Second, section 58 of the Solicitors Act 1954 makes it an offence for an unqualified person to draw or prepare a document relating to legal proceedings or to real or personal estate for a fee or reward. A deed of separation dealing with a home and with money is such a document. This site is not a solicitor, so it does not draft one, and you should be careful of anyone who is not a solicitor and offers to.

What you can do, and what the checklist below is for, is work out the terms yourselves. Many couples agree everything in the Legal Aid Board's free Family Mediation Service and then ask solicitors only to put it into a deed. That keeps legal costs down without giving up the protection a properly drawn deed gives.

Checklist of clauses

Take this list into mediation or to a first solicitor's meeting. Not every clause will apply to you; the point is to make sure nothing is forgotten.

Parties and background

• Full names, addresses and the date and place of marriage
• The date you began living apart (this matters later for the divorce clock; see How long do you have to be separated before divorce in Ireland? The two-in-three-years rule)
• A statement that you both agree to live separately and that neither will interfere with the other

Children

• Where each child will live, and the pattern of time with each parent, including school holidays and special days
• How decisions about school, health and religion will be made
• Child maintenance: the amount, how often, how it is paid, and when it changes (for example at 18 or at the end of full-time education)
• Who pays for school costs, medical costs, childcare and extras
• How the arrangements will be reviewed as the children grow

Spousal maintenance

• Whether either spouse will pay maintenance to the other, how much and for how long
• Whether it is to be made a rule of court
• Whether it ends on remarriage or cohabitation
• How it will be reviewed, or whether either of you waives any future claim

The family home

• Whether it will be sold, transferred to one spouse, or kept for a period (for example until the youngest child finishes school)
• Who lives there in the meantime and who pays the mortgage, insurance, repairs and property tax
• How the proceeds of any sale will be divided
• What happens to the mortgage: the lender's consent, release of the departing spouse, and a fallback if the lender refuses
• See Who gets the house in a divorce in Ireland?

Other property and money

• Division of savings, investments, shares and any business interests
• Who keeps each vehicle and the contents of the home
• Who takes responsibility for each debt, loan and credit card, and what happens if one of you defaults
• Any lump sum one spouse will pay the other, and when

Pensions

• A list of every pension each of you holds, with scheme names and recent statements
• What you both intend to happen to each pension on divorce or judicial separation, recorded as an intention to seek a pension adjustment order on agreed terms
• An acknowledgement that only a court can make the order; see Pension adjustment orders in Ireland: how a court splits a pension on separation or divorce

Succession and death

• Whether each of you waives the automatic right to a share of the other's estate under the Succession Act, and the terms of any mutual renunciation
• Any life insurance to be kept in place to secure maintenance

Legal and procedural

• Confirmation that each spouse has had independent legal advice
• Full disclosure of means by both sides, with the schedules attached
• An agreement to cooperate in any later divorce and to ask the court to make orders in the terms of the deed
• Who pays the costs of the agreement
• A review or variation clause, and what happens if circumstances change

Making the agreement stronger

Three steps make a deed far more likely to hold when it is tested.

Full disclosure. Each of you sets out income, assets, debts and pensions, usually in a schedule modelled on the court's Affidavit of Means. An agreement reached without disclosure is the one most often set aside later.

Independent advice. Each spouse has their own solicitor. One solicitor cannot act for both of you in a matter where your interests differ.

Fairness. The divorce court's test is proper provision, not "whatever you signed." An agreement that leaves one spouse with far less than a court would order invites a challenge years later. Agreements that look fair tend to survive.

From agreement to divorce

Most separation agreements are a stage on the way to divorce. Once you have lived apart for two of the previous three years, either of you can apply, and in consent cases the court is often asked to make orders in the terms of the deed, including the pension adjustment order the deed could not make. See How divorce works in Ireland, step by step and Judicial separation in Ireland: grounds, process, orders and cost.

Where this leaves you

Before you negotiate, know which parts of your finances an agreement can settle and which only a court can. Use the maintenance and pensions tool to list your pensions and see which types need a pension adjustment order and a valuation. Take the checklist above into mediation or to a solicitor, and have the finished deed reviewed by your own solicitor before you sign; see the solicitor page.