Separation For Couples – A Solicitor’s Guide 💔
Jun 12, 2020 | Christopher Dolton
A reluctance to initiate divorce proceedings can often lead to the process of separation for couples who are having marriage difficulties. Going through this process, as opposed to immediately pressing ahead with a divorce, does however have its benefits.
Separation is the process in which the couple no longer wish to live together but have not agreed that their marriage is over. Some couples choose to separate their responsibilities, assets and debts without formally proceeding with a divorce. In such circumstances, it can be extremely difficult to know how to manage the situation properly and often requires input from an experienced solicitor. The purpose of this guide is to provide useful information on the concept of separation for couples who may not wish to pursue the more conventional route of divorce.
When should you consider separation?
The idea of separation for couples going through marriage difficulties can sometimes be an appealing one, particularly for those who are either unsure whether they want to go ahead with a divorce, or those who still want to benefit from being legally married.
There are a number of reasons as to why couples going through marriage difficulties may opt for the process of separation over divorce. For example:
• Separation can often act as a “trial period” for couples prior to them making a definitive decision as to whether they want to continue with the marriage or dissolve the legal relationship. This “trial period” can be used by couples to try to resolve their differences via means such as counselling or mediation. It can also involve one of the parties spending time away from the family with the intention to return should there be an improvement in relations.
• Although the grounds for divorce are currently being changed by Parliament, at the moment a petition can only proceed if the petitioning party has grounds for doing so. These may carry implications of fault on the party being divorced, for example where unreasonable behavior or adultery are the grounds relied on. Many couples feel that even where such grounds may technically be available, the reality is that the marriage has simply broken down through no one’s particular fault and that for one party to present a petition based on fault of the other is neither helpful nor reflective of the reality of the situation. In that case a couple may agree to separate and to present a petition on the alternative ground of separation once they have lived apart for a period of two years. In that case a deed of separation enables them to agree financial arrangements when they separate rather than having to wait for the two years to pass before doing so.
• If a couple no longer wish to stay together, but their religious beliefs prevent them from proceeding with a divorce, then separation can be considered a viable alternative.
• If a couple have been married for less than a year, they will be unable to divorce until the year is up. In such a scenario, a legal separation will specify the financial terms the parties must comply with whilst they are waiting to divorce. This is often utilised by couples as a means to protect financial interests during this interim period.
It is often the case that when a couple go through the separation process and later decide to divorce, the former expedites the latter.
Separation has been agreed – what to do next?
In circumstances where a couple have agreed to separate but do not yet wish to divorce or dissolve the civil partnership, a separation agreement may be the best way to resolve any outstanding issues and to ensure that everything proceeds fairly moving forward and in the future.
A separation agreement will formalise the terms of any agreement reached between the parties. It is a formal legal document and often includes details of financial arrangements agreed between the parties prior to their impending divorce.
The position in respect of finances will need to be carefully considered when it comes to negotiating an agreement, whether it is by informal means or via mediation. A list of all financial assets should be prepared, whether they are held in joint names or by either one of the parties. Such assets could include any savings the parties my have, the matrimonial home, pensions, bank accounts and tax credits.
Separation agreements require full and frank financial disclosure by both parties, and it is essential that independent legal advice is obtained from an experienced family law solicitor prior to entering into any separation agreement.
It is important to bear in mind that a separation agreement, as its name suggests is an agreement. It can only be entered into with the agreement of both parties. If one or other is unwilling to agree terms, the court has no power to impose an agreement. If the parties can’t agree but still wish to avoid divorce proceedings an application for a decree of judicial separation may be needed. This provides legal recognition that the couple will live apart and importantly gives the court the jurisdiction to deal with financial matters if the couple can’t themselves agree how they are to be dealt with but, unlike divorce, does not dissolve the marriage.
Are separation agreements binding?
Just as with pre-nuptial agreements, separation agreements may be reviewed by the court. For example where parties have separated and entered into a separation agreement and then subsequently divorce, the court when looking at financial matters will consider all relevant circumstances. Whilst the existence of a separation agreement will be considered of “magnetic” importance, the court still has to take into account all of the other circumstances of the case.
The starting point is that where parties have entered into such an agreement, they should be bound by the terms agreed. But the court will want to check all was done fairly; did both parties have full understanding of the financial assets and liabilities when they entered into the agreement; was either party placed under undue pressure; did both have the opportunity to take legal advice? Even where the circumstances in which the agreement was entered into are seen to be fair, the court may still make different provision if the consequence of holding the parties’ to the agreement would be to place them, or more importantly a child, in a position of grave financial hardship. In such a case, whilst the court will still take the existence of the agreement into account, it may decide to make an award that differs from the provision contained in the agreement.
Assets and finances on separation for couples
If you decide to separate but had invested jointly in property or acquired assets with your partner during your relationship, then a number of issues will need to be determined. These include who is to live in the property moving forward, whether the property should be sold and how the proceeds of sale should be divided. The answers to these questions will vary depending on several different factors. What was agreed or intended at the time of purchase is one of the key factors that will need to be considered.
There are some instances where a property will be in one person’s name but the other person may be able to claim an interest in the property or a right to stay. A solicitor can assist you with either taking urgent steps to registering a property or the Land Registry or protecting the equity in a property if is being claimed following the breakdown of a relationship.
Separation for couples with children
In circumstances where the separating parties have children, both parties are required to financially support the children. This is known as child support. Arrangements will also need to be made in relation to looking after the children and their welfare.
Child support relates to the living costs of any children of the relationship when one parent no longer resides with them. Child maintenance can be agreed privately between the separating couple or made via a government scheme known as the Child Maintenance Service (CMS). The CMS scheme covers children whilst they are in secondary education or children up to age of 20 if they are in approved non-advanced education or training). If a child goes onto advance education, such as university degree, the parents are still obliged to support the child, but if unable to agree the court would deal with the matter rather than CMS. Similarly the court retains jurisdiction to deal with school fees orders, top-up orders (cases in which the paying parent earns more than £150,000 at which limit the CMS assessments are capped) and cases in which the paying parent lives abroad.
How Elite Law Solicitors can help
The process of separation for couples is rarely easy and often requires the input of experienced legal experts to ensure that the process is handled in the fairest manner possible. If you are facing the prospect of separation, you are likely to have many questions and concerns. What will happen to your assets, finances and property? What steps can you take to ensure that the welfare of your children is placed at the forefront?
Our experienced family law solicitors possess the legal expertise and practical know-how to help you through the process of separation and agree a fair settlement whether it is in relation to finances or arrangements for children.
Make A Free Enquiry
If you have any queries relating to any of the issues discussed in this article or would like any assistance in relation to your separation, please get in touch with Christopher Dolton, a senior solicitor in our Family Law department, by calling 0800 086 2929, emailing firstname.lastname@example.org or completing our Free Online Enquiry Form.
The content of this article is for general information only. The information in this article is not legal or professional advice. For legal or professional advice please contact an appropriately qualified family law solicitor such as those within our firm.