Separation

FAMILY LAW SOLICITORS & FAMILY LAW FIRM READING

Judicial Separation

People often confuse judicial separation with marital separation.  Judicial separation is a formal, legal procedure.   Marital separation is an informal process and has little legal effect, although any evidence of informal separation may be used in legal separation and divorce procedures.

In judicial separation, whilst the parties remain married, marital obligations no longer apply to their fullest extent and the couple live separately.  In many cases, judicial separation is a pre-cursor to divorce and is often used where the requirements for divorce cannot be fulfilled.   However, as we shall see, it is often not advisable to use judicial separation where there is a definite intention to get divorced.

Grounds for separation

The grounds for judicial separation are broadly similar to those for divorce.  It will have to be shown that one spouse or both have:

  • Exhibited unreasonable behaviour (the bar is set fairly low by the bar)
  • Committed adultery
  • Acted violently
  • One of the parties have been abandoned for a period of two years or longer
  • Both parties agree to the separation

Bar the last point, in addition, it has to be shown that the couple cannot be reasonably expected to live together any more.  Unlike divorce however, it does not have to be shown that the marriage has ‘irretrievably broken down.’  In divorce there are also two decrees: decree nisi and decree absolute.  In judicial separation, only a decree for the separation is needed.

Legal effects of separation

  • The spouses no longer have to live together.
  • The court can divide matrimonial property in the same way it can for divorce.
  • Spouses can no longer benefit under each others’ wills.

Reasons for choosing separation over divorce

  • One party is opposed to divorce.  Although personal reasons are relevant, the reason is often related to religion.
  • The couple have been married for less than a year.  After a year of being married, a couple can legally divorce.
  • An irretrievable breakdown of the marriage cannot be proven, which, to recap, is a requirement of divorce.

Judicial separation versus divorce

Whilst we understand issues like this are of a very personal nature, if you intend to get divorced, it often makes sense little sense to choose judicial separation over divorce.

It may, in very limited cases,  be difficult to prove a marriage has irretrievably broken down.  However, provided certain conditions are fulfilled, it is often not difficult to prove that a marriage has broken down due to unreasonable behaviour.  The law does not like to interfere with personal reasons in family disputes, so the bar for unreasonable behaviour is set fairly low.

Choosing judicial separation over divorce may cause other problems.  Once separated, the couple needs to have lived apart for two years to apply for a divorce.  However, if one party does not consent to the divorce, the issue can drag on for a long time.  If one partner has met someone else, they will not be able to move on and remarry.

FAQs about:
Separation

Separation

The end of a marriage creates a number of issues, such as childcare duties and dividing possessions, which need to be sorted with careful thought.

What are the ways I could go about separating?

  • To separate informally without needing to go to court

  • To separate by drawing up a separation agreement

  • To end the marriage formally through divorce

Who should I inform when the marriage ends ?

If you and your partner have decided to separate you should inform your housing benefit and council tax office as well as your mortgage lender and utilities companies. You should also let your tax office know as well as hire purchase or credit companies. If you and your partner have a joint bank account they should also know; you should also consider freezing your account so that your partner is unable to withdraw all your funds.

Informal separation

You can avoid having to go to court while still making the necessary childcare, financial and housing arrangements. However any decisions you make in this scenario may affect future decisions if you ever go to court. A court still has the power in this case to change an arrangement it views as unreasonable or is not in a child’s best interests.

Separating with a separation agreement

A separation agreement is an agreement made between a couple who plan not to live together. It defines how they want to sort financial arrangements, property and child-care arrangements.

You may want to set out in the agreement details of wanting to live separately and not molesting or annoying the other partner. You may also specify what, if any, financial support one partner will give to the other for childcare and general maintenance. You can also specify who the children live and have contact with.

Having a written agreement which you can refer to make it easier for you both to remember and understand what has been agreed.

It is advisable to have a solicitor help draft the agreement but you may want to consider in advance which areas you will cover as this will save considerable legal costs.

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