Deeds of Separation and Judicial Separations

If you and your spouse decide to separate, there is no requirement to have this separation made official or to obtain any document that states that you are separated. Simply by living apart, you and your spouse are ‘separated.’ However, if you obtain a ‘deed of separation’ (or separation agreement) this formalises your separation, which can reduce the stress, cost and acrimony suffered by couples between separation and divorce.

Separation: Can We Still Live in the Same House?

It is possible for a couple to ‘separate’ but to continue to live in the same property as two individuals – whether because it is impractical physically or financially to do otherwise. In order for two spouses to co-habit rather than live as a couple they must stop sharing domestic arrangements such as shared meals, shared laundry and attending social occasions together. For all intents and purposes they must live as two separate ‘households.’ This is vital in relation to establishing the grounds for divorce, as failure to remain separate may jeopardise the requirement to have separated for a minimum period of time – whether two or five years.

Is a Deed of Separation Final?

It is important to note that your deed of separation, or separation agreement, is not binding on any tribunal that deals with your divorce. It is capable of being challenged by either party, whether on the grounds of fraud (for example not disclosing all your assets), mistake, where one or both parties have not obtained legal advice beforehand, or where one party has pressurised the other into making the agreement. In order to ensure that financial matters between you and your former spouse are finalised, you should proceed with a consent order in your divorce proceedings (to dismiss all remaining claims.)

What is a Judicial Separation?

A judicial separation is an order of court that has the effect of removing the rights and obligations, in particular the financial burdens, implemented by a marriage. However, after the judge has ordered the separation the couple still remain married to one another. Another effect of this type of order is that neither party can subsequently divorce the other one on the ground of desertion.

Who Benefits From a Judicial Separation?

Judicial separations are a common legal procedure for certain categories of people: retired people for whom a divorce would mean the loss of one or more considerable pensions, and those who no longer wish to live together as man and wife but who, for religious, reasons wish to remain married. Similarly, people who have been married to one another for less than one year also apply for judicial separations, as they are prevented from divorcing one another within the first twelve months of marriage.

How Can I Obtain a Decree of Judicial Separation?

The procedure starts in much the same way as it does when two spouses wish to divorce in that a petition is filed at court. Unlike divorce, however, there is no requirement to demonstrate that the relationship has broken down irretrievably. The court is able to split financial matters so that the parties can live independently. The one exception to this is in terms of pensions. Obtaining a judicial separation does not prevent you from filing a divorce petition at a later stage, should you so wish.