Marriage imposes certain duties upon a couple, including the duty to live together. When a marriage breaks down, it may not be possible to apply for a divorce immediately; for example, if a couple have been married for less than three years.
Although it is not necessary to take any legal steps upon separation, it can sometimes be useful for both married and unmarried couples as their legal rights as a partner may depend on whether they are married or living together.
It may simply be the case that the couple no longer wish to live together and no adultery or other conduct giving grounds for divorce has occurred. In such circumstances there are two options available.
This is a contract which sets out the terms under which the parties agree to separate, how the matrimonial assets are to be divided and what provision is to be made for any children.
Each contract is individually drafted to the requirements of the individuals concerned and may include provisions governing the agreed grounds for divorce in due course. It is also usual to incorporate clauses governing the allocation of any property owned, the amount of maintenance to be paid for the spouse and/ or children, the division of any other assets and liabilities including insurance policies, motor vehicles, bank accounts etc.
The benefits of such agreements cannot be overestimated. They enable a couple to negotiate the financial arrangements and division of assets whilst waiting for their divorce to be permitted.
Separation Agreements can either be based upon arrangements reached between the couple themselves or can be negotiated by their respective lawyers on their behalf.
In either event, it is far less expensive to negotiate the settlement than to have it decided by the court.
Once a separation agreement has been negotiated and signed by the parties, it is binding upon them as a contract. When in due course a divorce petition is presented to the court, the separation agreement can be ratified by the court and its terms become incorporated into the Court Order.
This occurs when a person wishes to separate but not divorce. The difference between a Separation Agreement and Judicial Separation is that the latter is placed before the court. Judicial Separation is more common when there are religious reasons precluding divorce or where one party does not wish to lose their spouse’s pension benefit.
To obtain a decree of Judicial Separation, the person applying to the court must show that a ground for divorce has been established. Once a decree of Judicial Separation has been granted it is no longer obligatory for the parties to cohabit.
Where there is to be a Judicial Separation, the court can make specific orders as to financial and children’s matters, either after an agreement has been reached or following a court hearing. This is especially useful if a divorce isn't possible and interim protection (such as maintenance pending suit) cannot be agreed or is being refused.
Following a decree of Judicial Separation, it is possible for either party to apply for a divorce at a later stage, should they so choose.
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Legal 500 2022
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Legal 500 2022