Marriage separation is a question of fact. If one party moves out of the family home then marital separation takes place. They do not need a Deed of Separation or certificate to confirm the separation. They will each be treated by the State as single provided they do not cohabit with anyone else.
Legal Advice on Separation
Dealing with Separation and the effects of Separation on the children of the marriage is usually the first step towards coping with the divorce. Receiving sympathetic legal advice to help you understand the legal implications and options available to you will help to relieve the stress of splitting up.
The separation has to be deliberate. If one spouse works abroad and no discussions about the marriage breaking down or family separation take place, there is no separation.
A couple can separate and continue to live in the same property. There needs to be no degree of cohabitation. This normally occurs when the couple have decided they are splitting up, but for financial and practical reasons immediate property separation has not yet taken place.
The couple must stop sharing their lives and living arrangements such as cooking, laundry and social engagements and live in separate households. The couple must live as separately as possible; otherwise they may prejudice the divorce proceedings.
This period of separation can count when establishing grounds for divorce in the divorce proceedings based upon either 2 years’ or 5 years’ separation.
The separation can be formalised in a Separation Agreement or Deed of Separation. The Separation Agreement will contain details of the financial arrangements, such as what happens to the former matrimonial home, the mortgage repayments, maintenance, who the children will live with, etc. It can even detail when the couple will divorce.
A Separation Agreement is also useful when a couple are undergoing a trial separation as it regulates the financial issues.
Normally a Separation Agreement is incorporated into a Consent Order in the Divorce Proceedings. However, a District Judge does have the power to overrule the Separation Agreement in the event of a future dispute. This could occur where there has been fraud or mistake, where one or both parties have not been legally represented, where one party has been subject to undue oppression or where the circumstances have dramatically changed.
In summary the court has the power to overrule a Separation Agreement if they consider the Separation Deed to be unfair.
The only way to ensure finality of financial matters is to proceed with a Consent Order in Divorce Proceedings which states that all remaining claims are dismissed.
Legal Separation in the UK
Alternatively, legal separation known as Judicial Separation can be obtained.