Separation - the Facts

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Married couples can separate for a number of different reasons. Separation is not always permanent and many married couples who separate do go on to work out their differences without the need to take matters any further. Often couples will begin by having a trial separation, so that they can try to resolve their differences through means such as counselling. This could involve one party living away from the family home for a period but with a view to returning if relations improve.

There is no prescribed legal definition for what constitutes a separation and in some cases where there have been a number of separations and attempts to work things out, it can be difficult to establish exactly when the relationship came to an end.

What Is the Meaning of Legal Separation?

If a couple have separated and are absolutely clear that there is no prospect of reconciliation, it can be possible for them to enter into a Separation Agreement. If you are able to reach agreement on matters between yourselves these can be reviewed and taken in to account when financial arrangements are finalised. You can also choose to put in place a formal separation agreement.

What Is a Formal Separation Agreement?

You can choose to separate informally between you and your spouse or get a formal separation agreement. This is a legal document which usually sets out financial arrangements between the parties in advance of a final divorce. For such agreements to be accepted it is often vital that both parties have had legal advice and there was full financial disclosure before entering into the Agreement.

What Is a Judicial Separation?

It is possible to obtain a Judicial Separation in place of a divorce, although this is rare in practice. This can take place where parties are agreed that the marriage is over however are not willing to obtain a divorce, for example on religious grounds.

Here are 25 top tips for parents who have separated to help them think about matters from their child's perspective.

What Is the Difference Between Separation and Divorce?

The main difference between a divorce and a judicial separation are:

  • A judicial separation means you remain married, whereas a divorce means your marriage is legally over. This means you can remarry once you’re divorced, but not if you’re separated.
  • The court can split pensions during a divorce but is unable to exercise these powers for separation.
  • You can apply for judicial separation at any time, but if you petition for divorce you will need to cite one of the five grounds in order to prove that your marriage has broken down.

Separation Vs. Divorce

There are many reasons why couples may want to get legally separated rather than divorced. Some of the advantages of being separated are:

  • It can help couples know where each other stands if a formal arrangement is in place.
  • Legal Separation can ensure couples formally agree that they no longer live together.
  • You can agree that your relationship is over, even though you’re still legally married. This is useful for couples who do not believe in divorce, i.e., because of a religion.
  • Formal separation agreements can set out the financial arrangements in advance of a divorce and are typically upheld by the Court in the event of a dispute.

How Do I Apply for Judicial Separation?

To apply for judicial separation, visit the website and apply to the Court by filing a Form D8 – judicial separation petition.

For more information we recommend speaking to one of our family lawyers.

What are your responsibilities?

If you are both agreed that the marriage has ended and arrangements need to be made for moving forward, there are a number of steps you can take which will help you when you come to negotiate an agreement, either informally, through mediation, or ultimately through the Courts.

In terms of financial assets, try to prepare a list of any financial assets, either in joint names or held by one or the other, which would form part of any settlement. This could include but is not limited to:

  • The matrimonial home
  • Pensions
  • Any savings you may have
  • Tax credits
  • Bank accounts

In terms of children, if the children are to remain living with one parent, and the other parent moves out of the home, try to give some thought as soon as possible to how contact arrangements are going to work. Separation is often going to be difficult and upsetting for children, it is always better to plan access as early as possible.  Read more information on divorce and children

On a practical level give consideration to what financial arrangements can be put in place to meet the needs of the children.

Following on from this other practical steps which may need to be considered are the property and the implications of going from two to one in a household and other considerations will may follow on from this such as pets, family car, school events, school fees, holidays and travel.   It is often helpful to try and agree a parenting plan dealing with such matters. 

Each case is unique and needs to be dealt with individually to some extent. In due course it will be necessary to identify all of the assets and liabilities of the marriage so any settlement reflects the full picture.

The Crombie Wilkinson Solicitors Family Law Team

Our team of family and childcare specialist legal advisors have a wealth of experience and expertise in dealing with your problems. The appropriate adviser will be allocated to you to ensure the best family law advice is obtained.

Our experience is recognised by membership of several organisations including the Law Society Children Panel, Law Society Family Panels and Resolution.

Get in touch with us here for more information. 


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