When spouses are not living together they may consider themselves separated – but what does that mean in the eyes of the Law? How the Law and a court looks upon a separation when a couple separate but do not divorce can depend upon the type of separation and what is intended by each spouse. There are a number of different ‘separations’.
First the trial separation. This is usually where a marriage is not working out and there is a decision to live apart for a trial period so each can decide whether they wish to separate permanently or give the marriage another go. A trial separation is unlikely to have any legal consequence. It is just another period in the story of the marriage. Any assets accumulated by either during the separation will be matrimonial property and for all legal purposes the spouses will be considered married.
Couples may make the decision, either before or after a trial separation, to separate permanently but not divorce. If so, they will still be married in the eyes of the Law and all the rights and obligations which come with marriage continue. It is therefore important to think through and agree the arrangements to apply during the separation and record these in a written separation agreement. Clauses in the agreement should deal with the financial arrangements, the arrangements for children and set out the agreement to live apart and for how long.
Neither of the above require any involvement with the courts, but sometimes, when a marriage is emotionally dead but for some reason the spouses do not wish to divorce, a more formal separation is required. They may then petition for a judicial separation which allows a court to formalise the separation and make any necessary financial orders.
A rather new phenomenon is living apart together. This is where spouses still get on but one or both feel restricted by the close relationship and they decide to set up separate homes. If they live apart for two years this can be the ground for a ‘no fault’ divorce, but otherwise there are unlikely to be any significant legal consequences. Deciding and recording the arrangements in an agreement is always sensible.