Separation

The Law does not require you to file a formal legal document for you to be legally separated, all that is necessary is that you live apart. However, it can sometimes be useful to record any associated agreement in a ‘Deed of Separation’.

You can still be regarded as living separately whilst still living under the same roof as long as you both lead independent and separate lives, e.g. you no longer eat or sleep together and do not perform any domestic chores such as washing, ironing or cooking for one another. As soon as you are no longer ‘living together’ you will be considered as separated for tax and state benefit purposes.

Separation for two or more years, providing both parties agree to the separation, can be the basis for divorce in the future.

Separation Agreement

Reaching agreement regarding arrangements for any children and the division of money and property on separation is a better option for separating couples, who are more likely to find terms they have negotiated themselves more satisfactory, than those imposed upon them by the Court. A formal document can be drawn up recording any agreement reached and is called a Deed of Separation.

As long as the Court considers that the formal agreement has been made after careful negotiation and without any undue pressure from either party on the other, all relevant information has been disclosed and they have both had the opportunity to take independent legal advice, they will give considerable weight to the terms therein. However, if both the husband and wife want to ensure that the agreement will not be contested at a later date they can ask the Court to approve the terms of the agreement, turning it into a Consent Order.

A Consent Order, once made, is very unlikely to be overturned. To do so it would be necessary to prove not only that there was an error or problem with the order but that, had the error not been made or the problem occurred a different order would have been made.

Judicial Separation

A decree of Judicial Separation, although very uncommon, can be obtained where one or both of the parties are opposed to divorce, often on religious grounds, or where the couple have been married for less than a year (there is an absolute bar on divorce within the first year) and yet want formal recognition of the separation, or if it is difficult to prove the irretrievable breakdown of the marriage as is required for a divorce.

Judicial Separation is a Court Order which is similar to divorce. Although the couple remain married and are not free to remarry, they no longer have any of the normal marital obligations to one another.

The main effects of Judicial Separation are:

• The couple need not live together.
• The Court has the same range of powers as it does in divorce cases and can issue orders with regard to the division of property and finances and also for the provision of custody, support and maintenance of any children.
• It cancels any benefit a spouse may take from a Will, unless a new Will is drafted which reinstates them as a beneficiary. Unlike divorce however, judicially separated couples may still be eligible for benefits under each others pension scheme on the death of their partner.

Couples who obtain a judicial separation can, if they wish, apply for a divorce at a later date. However, the judicial separation or separation order cannot subsequently be changed into divorce and therefore, if a couple decide in time to divorce they will incur further legal costs.