When a marriage breaks down, it often means divorce. However there is an alternative which should always be considered. This is separation, either judicial or informal. A marriage which is in trouble may not necessarily be dead, and divorce may not be inevitable. A period of separation can well allow a breathing space to allow both parties to avoid a hasty and later to be regretted decision. Also for some people, divorce is not an option for religious or other reasons.

There are two types of Separation, an informal separation, and the more official judicial separation. Informal separation-does not involve the Courts. It is simply a decision to live separate lives and apart. So long as matters can be agreed concerning children and money, it is simply a case of deciding when, and for how long, and then making the move. What is vital is to record what has been agreed between you when you decide to part.
This agreement should be recorded in a separation agreement which you and your spouse will both sign. Should you eventually divorce the Separation Agreement could form the basis of the financial settlement which can be incorporated into a consent order.

A typical separation agreement will deal with:

  • Details of the parties, including the separation date
  • Details of any children, if applicable
  • Arrangements for the disposal of the house by sale, or
  • An option for one party to keep the matrimonial home and be bought out by the other
  • Payment of outgoings such as bills and other expenses – who will pay
  • Division of other possessions and household property
  • Assignment of insurance policies
  • Division of business property
  • Maintenance payments for the spouse and any children
  • Lump sum payments
  • Conclusion of joint accounts
  • Option for the parties to agree to petition for a divorce after two years separation
  • Child maintenance arrangements
  • Parental rights arrangements

What has been agreed on separation is not binding on the court in divorce proceedings but will be highly persuasive. Providing that what has been agreed is fair and reasonable the court is most unlikely to refuse to order what has been agreed.

Judicial separation is where the court gives legal affect to the separation. You will however remain married. A decree of judicial separation will be granted for any of the reasons which would justify a divorce however it is not necessary to establish that the marriage has irretrievably broken down, which is essential during a divorce. The court may make orders relating to the matrimonial assets and divide up property. Entitlements under a pension will however continue.

It is a halfway house which falls short of a divorce in that you remain married but enables the court in a formal decree to recognise that you and your spouse are separated and living apart. It will also enable the court to make orders relating to maintenance and such things as who will live in the house. There may be advantages in allowing the marriage to continue if there are inheritance or pension rights that might not otherwise be replaced or if you have religious objections to divorce.
The procedure to obtain a decree of judicial separation is similar to the divorce process. The grounds are the same as for divorce and the main difference is that as the marriage will not be dissolved and that it is not necessary to show that it has irretrievably broken down.

A decree of judicial separation has three main effects:-

  1. You and your spouse are no longer obliged to live together;
  2. The court can exercise all the powers which it has to divide the matrimonial property etc just as it can in the case of a divorce; and
  3. The decree operates just like a divorce in terms of its effect on any will – the spouse no longer takes any benefit unless a new will is made specifically stating that is to be the case.

You will probably only want to consider a judicial separation if:

  1. Either you or your spouse are opposed to divorce for some reason – typically for religious, family or cultural reasons.
  2. There is an absolute bar to divorce within the first year of a marriage and so judicial separation may be all that is available if the parties are determined to formalise the break by court proceedings within that first year.
  3. For some reason it may be difficult to prove the irretrievable breakdown of the marriage necessary for a divorce.

Few people judicially separate as most then go on to divorce at a later stage, and so incur the cost of two different legal procedures.