Separation

When a marriage breaks down, there are generally two options aside from divorce: legal separation (also known as judicial separation) or a separation agreement. This guide outlines the main differences between them, identifies cases where one might be more appropriate than the other and gives information on the legal implications of both.


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How does legal separation differ from divorce?

The main difference between legal separation and divorce is that the latter definitively terminates the marriage, while the former does not. Instead, a legal separation is basically an agreement that the relationship has come to an end and which sets out the financial arrangements during the separation.

This can include things like who will continue to pay the rent or mortgage, who will continue to live in the family home, what will happen to any joint debts, savings and assets and, if there are children involved, what the living and childcare arrangements will be.

Divorce is a longer and more complex procedure than having a separation agreement, which is essentially a contract between the couple. Aside from the process being quicker, a legal separation also does not require any specific amount of time to have lapsed during the marriage, whereas a divorce cannot take place until at least one year after the wedding date.

Those seeking a legal separation do not have to demonstrate that the marriage has “irretrievably broken down” as those seeking a divorce do, either. When filing for a divorce, the petitioner must demonstrate that one of the following “facts” of divorce has occurred:

  • Adultery
  • Unreasonable behaviour
  • Separation for a minimum of two years when both parties are conducive to the divorce
  • Separation for a minimum of five years if one party is not conducive to the divorce
  • Desertion

While those seeking legal separation do not have to prove that the marriage has “irretrievably broken down”, they will be asked to justify their decision using one of the same five grounds listed above.

Legal separation and divorce also differ in the effects they have on the couple afterwards. Divorced partners are free to re-marry, while legally separated couples are not. Meanwhile, a judge is capable, if required, of intervening to fairly divide financial assets or decide child arrangements with divorcing couples, but with separation they cannot.

When and why would you choose separation over divorce?

Legal separation is a less common option than divorce, but there are certain instances where it may be preferable. For example, if a relationship has broken down to the point where both parties need time apart, but haven’t definitely decided to end things forever, a legal separation might give the breathing space needed to reassess the situation whilst simultaneously clarifying all financial arrangements.

A legal separation might also be preferable in cases where divorce is not yet an option; for example, when the marriage is less than a year old, or where the legal requirements for divorce cannot be satisfied (by meeting one of the grounds outlined above). The same is also true when religious or cultural beliefs will not allow divorce or when one party is suffering from a mental or physical disability or disease and a divorce does not seem necessary.

The main difference between legal separation and a separation agreement is that the former entails the involvement of the court, while the latter does not.

Either spouse may prefer legal separation and the involvement of the court, especially if communication and cooperation has broken down between the couple and they cannot come to an agreement regarding their financial, living or other arrangements.

In these cases, one party can file for a Decree of Judicial Separation by citing one of the five grounds for divorce listed above, though they are not required to demonstrate that the marriage has “irretrievably broken down” (as they would be with divorce) or wait for one year after the date of the wedding.

In such cases, the court can be asked to intervene and impose a financial agreement on the two parties if they are unable to come to one themselves. However, this cannot involve restrictions on pensions – the pension company cannot be held to an agreement made between the couple.

A separation agreement is generally preferable because it is simpler. The agreement is a contract between the two parties, drawn up by solicitors, delineating their financial obligations to one another and specifying (if necessary) whether a divorce will be sought at a later date, by whom and on what basis.

A separation agreement is not binding in court, though if both parties entered into it giving a full and frank disclosure of their financial situation, it is unlikely that the court will allow deviation from it. As such, couples have to be careful regarding what they agree to, bearing in mind that the agreement could form the basis of their financial settlement upon divorce.

Is separation legally binding?

Both kinds of separation – legal separation and separation agreements – are technically not legally binding.

However, both are legal contracts which can be challenged or upheld in court, and they will provide a solid basis for a legally binding divorce agreement at a later date if both parties enter into them willingly and give a full and frank disclosure of their financial status at the time of signing.

Can cohabiters obtain a separation agreement?

While separation agreements are usually sought by married couples, there is no reason why unmarried cohabiters cannot obtain one.

Indeed, the very fact that the couple have never entered into a contract which outlined their financial responsibilities and agreements in a shared capacity (as happens with marriage) may mean that confusion arises in the event that the couple’s relationship breaks down.

Therefore, a separation agreement can simplify how any joint assets or debts (such as the outstanding rent on a fixed-term tenancy, for example) should be divided in the future. Even in situations where the breakup was amicable, separation agreements are capable of providing clarity and calm to an often-uncomfortable subject.

How can a couple live together but be separated?

Continuing to live together even after agreeing to separate as a couple can be a difficult endeavour, but not an impossible one.

The best way to achieve a harmonious cohabitation after separating is to outline each party’s expectations and obligations in a separation agreement. This should encompass the day-to-day running of the household, the financial arrangements between the two and the childcare for any children from the marriage.

As long as both parties are conscious and considerate of the others’ feelings and circumstances, there is no reason why a couple cannot live together while separated, and it should not affect the separation being used as grounds for divorce at a later date if the couple can show they genuinely lived separate lives whilst under the same roof.

Pros and cons of legal separation

A legal separation can be beneficial in that it gives couples time and space to reassess their marriage before committing to the finality of a divorce. It can also provide a blueprint for the financial arrangements that both parties intend to abide by while waiting for time to elapse in order to seek a divorce, thus protecting their interests in that time.

In cases where divorce is not an option (due to religious, cultural or medical reasons, for example), it can provide an acceptable happy medium that is more formal than simply agreeing to separate. Finally, it can be an objective way to divide financial obligations when the two parties cannot come to an agreement.

However, a legal separation is not automatically a legally binding agreement (it could be challenged by a spouse later down the line, for example) and, of course, it lacks the finality of divorce. As such, neither party will be free to remarry until they have divorced their previous partner, regardless of their legal separation status.

Pros and cons of a separation agreement

A separation agreement is advantageous in all the ways that a legal separation is, but without involving the court at any stage. This means that both parties can still have their interests protected via the mutual signature of a contract, but that they need not have their personal affairs presented to the court.

Separation agreements are also much more quickly and easily processed than divorce proceedings and can often be much cheaper. They can also be far more flexible and can include virtually any provision that both parties agree to.

However, as with a legal separation, a separation agreement can be challenged by either spouse at a later point and so isn’t enforceable in court, unlike divorce.

As it is a contract rather than a court order, separation agreements can be persuasive to judges, but they can also be subject to challenge and it is not uncommon for such agreements to be amended after the fact.

Those looking to file for divorce at a later date may find that the costs involved in the separation are effectively doubled, since they will have had to pay for the separation agreement initially and then repeat much of that process as part of divorce proceedings.

How does a separation affect financial obligations?

An informal or temporary separation of both parties has no effect on their financial obligations – they are still married and retain the same financial responsibilities.

If the couple wants to formalise their separation, then the financial arrangements (e.g. rent, mortgage, bills, loans etc) between the couple can be outlined and agreed upon within the separation agreement or Decree for Judicial Separation document.

Though not technically binding, any failure to live up to the previously agreed terms will be looked on disapprovingly by the court if the case ever went that far (though the prospect of going to court is often deterrent enough to a party not keeping up with their end of the bargain).

With regards to children, a separation (or indeed a divorce) does not affect the parents’ financial obligations at all. Both parents will still be required to pay towards the maintenance, support and upbringing of the child, regardless of which parent the child spends the majority of their time with.

This payment takes the form of child support payments and is calculated on a case-by-case basis, taking into account the income and circumstances of both parents.

Is it possible to commit adultery while separated?

Even though being legally separated or obtaining a separation agreement means that a couple are contemplating the end of their marriage, it does not finalise it in the same way that divorce does.

As such, any sexual intercourse conducted with a person of the opposite sex during the time that the couple are separated (but still married) is technically adultery and can be cited as grounds for divorce.

It’s important to note that sexual intercourse with a person of the same sex, or any other sex act which does not involve intercourse, is not counted as adultery in the eyes of English law. It’s also important to note that adultery cannot be cited as grounds for divorce if the couple were still living together six months after the adultery became common knowledge between the two of them.

Separation as grounds for divorce

Using separation as grounds for divorce is often seen as the most amicable way to end a marriage, as it does not require either party to blame the other for its breakdown.

Instead, a couple can file for divorce if:

  • they have been separated for two years and both agree to the divorce
  • they have been separated for five years, regardless of whether they both agree to the divorce.

As such, some couples choose to willingly enter into a separation agreement as a precursor to amicably ending their marriage at a later date. Of course, this relies upon the couple being willing to wait for at least two years before starting divorce proceedings, which isn’t a preferred choice for everyone.

Being separated for two (or five) years in this context does not necessarily mean living under separate roofs for that time.

As noted above, it sometimes makes more financial and practical sense for married couples to cohabit while being separated, and as long as they have lived “separate lives” during the prescribed time, they will be able to indicate these special arrangements on the divorce petition. Momentary lapses where they returned to living as a couple during the time are also permissible, but for no more than six months cumulatively.


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