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Deeds of Separation and Judicial Separations

By: Lorna Elliott LLB (hons), Barrister - Updated: 24 Nov 2015 |
 
Divorce Separation Judicial Separation

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.

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Abs - Your Question:
I have a joint mortgage with an ex boyfriend. He moved out about a year ago but still continues to pay half the mortgage. I have since totally refurbished the flat and he now wants me to move out so we can rent out for the maximum we can get due to the refurb. I don't want to as I have arranged and organised the work = although not paid for by myself. Can he force me to go? He is living with a new partner whereas I am alone so more expensive for me to move out as my full mortgage would be cheaper and I would be happy to take over. His mum also gave us the deposit although as no recorded interest. I want to be fair but I want to be fair, but I want them to be fair to me too.

Our Response:
As with many co-habiting relationships, it's a tricky situation. If you cannot both agree on a resolution regarding the property, then I can only suggest mediation which may help sort the matter out. Mediation is when two or more parties meet to resolve problems before the matter reaches court. It is most often used in family proceedings, Contact Orders, residence agreements and divorce. It is a formal negotiation and courts can accept the agreement of the mediation instead of having to go through the court process, although it is subject to final court approval. Mediation takes place in front of a neutral third party. The mediator has no pre-conceptions and will not force you to make an agreement. They will assist the two parties in taking turns in the conversation, and helping you reach a resolution that you are ready to agree with. Mediators do not pass judgment or offer guidance; they are there, in effect, to facilitate conversation between the two sides. Unless you can afford to buy him out, then there may be an option to sell the property. It is understandable that your partner may want a resolution if his money is tied up in the flat and he is continuing to pay the mortgage, but not getting any financial recompense. If you can't reach a resolution, then the next option would be to let the courts decide. However, a court case will invariably cost. Therefore, it is in both your best interests to hope this matter can be resolved amicably. I hope this helps.
DivorceResource - 25-Nov-15 @ 1:48 PM
I have a joint mortgage with an ex boyfriend.He moved out about a year ago but still continues to pay half the mortgage.I have since totally refurbished the flat and he now wants me to move out so we can rent out for the maximum we can get due to the refurb.I don't want to as I have arranged and organised the work = although not paid for by myself.Can he force me to go?He is living with a new partner whereas I am alone so more expensive for me to move out as my full mortgage would be cheaper and i would be happy to take over.His mum also gave us the deposit although as no recorded interest.I want to be fair but I want to be fair, but I want them to be fair to me too.
Abs - 24-Nov-15 @ 11:15 PM
After fifteen years of marriage and three children, I have finally taken the step of telling my husband and family of my unhappiness and need to separate. Financially, this is extremely difficult as I have not worked since 2000. I am now in employment, but on a very low wage in the short term as the company is a start up. I would like some advice on my legal right to insist on division of assets/salary etc. We have a joint mortgage on our home. Where do I stand legally?
Stabilo Boss - 7-May-14 @ 1:57 PM
I am 60 and receive a local gov pension. She is 57, works and has no pension.Financial arrangements being agreed now, she will receive 50% of my pension, but I have just realised that she wont get this until she is 60/65. Neither of use want to remarry. Would it be a better idea to have a jud.sep.I would keep the pension and give her 50% by standing order, if I die she gets the widows pension, if she dies first I keep 100% of the pension. I would have to include "no future claims against each other". Is this the answer to her getting the money now? or am I missing some important point? It seems a pity that 50% is not being paid to anyone for say the next 9yrs. She could even die before receiving it!
alex - 29-Apr-12 @ 3:33 PM
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