Separation

You are considered ‘legally' separated when either you, your spouse or both of you declare by your actions that you no longer wish to be seen as a married couple.  In most cases this will mean that one of you has moved out of the property you share and lives elsewhere.

Some couples separate but do not want to proceed with a divorce immediately but do wish to reach an agreement on financial matters.  If an agreement can be reached it is advisable for a Deed of Separation to be drawn up by a solicitor to reflect the terms of agreement.  Although a Deed of Separation is not watertight, in that it can be overturned by the court, it shows the intention of both of you to create a legal relationship.  If one of you should try to renege on an aspect of the agreement the other may seek redress by asking the court to enforce the agreement.

Q. If my husband and I enter into a separation agreement, do I have to wait two years before I can initiate divorce proceedings?

A. No, you can rely on another fact to establish that the marriage has irretrievably broken down within the two year period.  For example, if your husband has met a new partner and committed adultery, even though you are separated, this ground could be relied upon; or indeed his unreasonable behaviour.

Q. My husband and I separated 2 years ago and entered into a Deed of Separation.  At that time. I understood that the terms of the Deed of Separation would be final but I have now received divorce papers and my husband is trying to change the agreement reached. Can he do this?

A. Yes, although your Deed of Separation may have stated that the terms of agreement are in full and final settlement, your husband can ask the court to review the agreement to try to change it.  It is only possible to achieve a watertight "clean break" if you undergo divorce proceedings and enter into a consent order; this cannot be achieved by way of a Deed of Separation. However, if at the time the Deed of Separation was drawn up you both had the opportunity to, and did take, independent legal advice and both made available to the other person full details of your financial positions, it is far less likely that the agreement will be overturned by the court unless there has been a significant change in circumstances.

Q. My friends have suggested a judicial separation rather than a divorce.  What is the difference between them?

A. judicial separation proceedings would result in a decree nisi which, among other things, formally states that you and your spouse are living separately and apart although you remain married.  Such proceedings are rarely taken these days.  The procedure is the same as for divorce and will have to be repeated at a later stage should either you or your spouse wish to bring the marriage to an end.  However, the proceedings may be considered as an option in the following circumstances:

• where the couple have been married for less than one year;
• if one or both of the couple do not want a divorce on religious or moral grounds
• where the couple simply do not want a divorce but want to live separately from their spouse and to deal with their own financial affairs
• where the couple are of retirement age and one of them does not wish to lose the right to claim a widows or widower's pension in the event of the death of the other .

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