A legal separation allows a separating couple to work out details such as:
- Property - what will happen to the family home, who will get to live in it
- Financial - payment of maintenance, pension arrangements ect.
- Children - Who will have primary care of the children, what will the contact arrangements for the other parent be?
A legal separation can be obtained through either a separation agreement of judicial (i.e. court-ordered)separation. You do not have to go to court to get legally separated, if you and the other person agree on the terms on which you are separating. Either way you are still legally married after a legal separation and cannot get remarried unless you have obtained a divorce at a future date.
What is a Separation Agreement?
A separation agreement is a legally binding written contract between spouses setting their future rights and duties. Such as agreement is also know as a Deed of Separation. The agreement will include a number of terms, including :-
- An agreement to live apart and not to disturb or interfere with each other;
- Arrangements about responsibility for, and care of, the dependent children, including;
- If necessary, the level of contact that each spouse will have with the children;
- The amount of maintenance to be paid for the support of the dependent spouse and children and how and when the maintenance is paid;
- Arrangements as to who will own and who will live in the family home;
- Arrangements as to who will own any other property;
- Arrangements as to who will pay any mortgage(s); and
- Arrangements as to succession and inheritance. This may include again agreement to renounce each others rights to a "legal right share " of the other spouse's estate upon their death.
A separation Agreement is only binding between you and your spouse. It dose not bind third parties. For example if you agree changes to the terms of your pension arrangements (so that e.g. some of your pension will go to your spouse) the trustees of your pension scheme cannot implement these changes without a court order called a pension adjustment order being made. Likewise an agreement about paying the mortgage or ownership of the family home will not bind lender unless they also agree to the arrangement.
What is a Judicial Separation?
If spouses cannot reach an agreement about the conditions on which they will separate, or if only one spouse wants to separate, an application can be made to the court for an order for judicial separation.
Grounds for Judicial Separation:
Since the enactment of the Family Law Act 2019 a court can grant an order for judicial separation where the parties have been living apart for one year before the applications made whether or not the other party consents. " Living apart" dose not necessarily mean in separate dwellings. You can be "living apart under the one roof" in certain circumstance. Other grounds for judicial separation are;
- Unreasonable behaviour
- Desertion for a continuous period of one year before the time of the application
- Where no normal marital relationship has existed between the spouses for at least one year.
Additional order :- In making an order for judicial separation, the court may also make ancillary orders in relation to matters such as:
- custody and access arrangements in relation to dependent children;
- financial provision for the dependent spouse and children by means of maintenance to be paid at fixed intervals and/or lump sums;
- exclusion of a spouse from the family home by giving the other spouse the right to live in the family home, for life or for a fixed period;
- barring of a spouse from the family home by prohibiting that spouse from entering it and from using or threatening violence against the other spouse and/or their children;
- without prohibiting a spouse from entering the home, the court may make a safety order prohibiting a spouse from using or threatening violence against the other spouse or their children.
- Who has ownership and residency rights in relation to the family home. For example the court can order that one party transfer some or all of their share in the home to the other party or that the house be sold.
- financial compensation by making provision for the future financial security of a spouse through insurance polices. For example, requiring either spouse to take out a life insurance policy, assign the benefit of an existing insurance policy, and/or pay the premiums on a policy;
- inheritance/succession matters whereby the rights of either spouse to inherit from the other spouse may be extinguished. This means that the court may decide to end one spouse's right to share in the other's estate.(Estate means the assets held by a person at the time of death, for example, property, possessions and money);
- the court must be satisfied that proper provision has been made for a spouse before it will make this type of order. However, unless the court orders otherwise, a spouse can apply to court for a share of the estate of the other spouse;
- Pension arrangements adjusting the pension entitlements of either spouse. However, the court will only make a pension adjustment order if proper provisions has not been, or cannot be, made for the spouse and children through the making of other financial or property orders. A spouse can seek such an order either for his/her own benefit or for the benefit of dependent children.
Mediation is a process for resolving disputes where those in dispute meet with a third party who helps them to negotiate an agreed resolution.
Family mediation is a free service which we provide to help separating couples and partners whose relationship has broken down to negotiate their own agreement. With mediation you will be helped to make you own decisions that suit your circumstances. If you decide to go to court it will be a judge who will ultimately make theses decisions.
The above is provided for information purposes only. It does not purport to be either a statement of the law or legal advice.