Separation as a prelude or alternative to divorce

In the past, you may have chosen separation rather than divorce to protect valuable pension benefits. However, because the Court can now divide pensions this is no longer necessary. Instead you may have religious or simply practical reasons for choosing separation.

To regularise your separation before or without actually divorcing, you have two options:

Judicial Separation

The essential difference between a divorce and a Judicial Separation is that you remain legally married. You may prefer judicial separation to divorce for moral or religious reasons. Or because, you may wish to take this pre-emptive step to end your relationship within the first year of marriage,.

This Court procedure is virtually identical to that which applies to a divorce: the same “facts” need to be proved and, as in divorce, and, if you are separating on the grounds of adultery or unreasonable behaviour, this must have happened in the six months immediately before you separated or at any time afterwards.

Separation Agreement or Deed

Like many couples, you may agree to separate before divorcing but want to settle your finances without delay. You can do this without involving the Court by signing a written Separation Deed or Agreement which

• confirms that you are to live apart
• details your agreements about maintenance, finances and property
• incorporates any other financial arrangements you wish to include

You cannot force your spouse to sign so, if you cannot agree your financial arrangements, you would be better off working out on what grounds to issue divorce proceedings.

Should you or your spouse make a financial application at any time after agreeing a Separation Deed, the Court must consider, but is not bound by your Separation Deed. To ensure it carries weight you should therefore

• each make full and frank financial disclosure
• each seek the legal advice of your own solicitor
• have an expert family solicitor prepare your Deed

Provided you have each entered into the Separation Deed voluntarily and have followed the steps above, it is likely that your Separation Agreement can simply be confirmed in a Consent order should you go on to divorce. However, if you entered into an unfair Separation Agreement or there has been a significant change in circumstances, you can ask the Court to look at your situation afresh.

If you are considering Judicial Separation or a Separation Agreement, contact us for friendly, professional advice.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.