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3 Divorce and Separation

pdf icon Download Divorce and Separation (PDF File, 381kb)

1. Introduction

2. Where to start

3. Separation

What do I need for a legal separation?
Some married couples never get as far as divorce, but are happy to stay apart. All you need to do to be legally separated is live apart. You do not need any formal legal document, although it can be helpful to record any agreement in a ‘deed of separation’. Once you are no longer living together, you are classed as separated for tax and state benefit purposes. Officially, you can even be separated but still live under the same roof, if you:

  • arrange your household so that you no longer sleep or eat together; and
  • do not do domestic chores, such as washing or ironing, for each other.

If you separate for two years or more and both agree to the separation, this can be the basis for a future divorce.

The courts have only limited powers to make financial orders for separated couples (those who are not yet divorced). This generally means that you have to reach an agreement between yourselves about money. If you plan to divorce soon, you may only need to deal with maintenance. If you think your separation will last a long time, you may need to sort out who will keep the house and other assets. You should get legal advice about these arrangements.

Can we make the terms of our separation legal?
You can record any agreement that you reach about children, money and property in a formal document. This is sensible, because you can draw it up in a way that makes it enforceable if your partner does not keep to what they promised. You will need the help of a solicitor to do this. The document is called a 'deed of separation'.

A deed of separation can cover all the financial arrangements between you and your partner. It can also deal with what you have agreed about the children, and any plans that you may have to divorce, or not divorce, in the future.

A deed of separation is not automatically binding on a divorce court. If you later divorce, you may need to make your agreement binding by a financial order made as part of the divorce.

Do I need legal advice for a deed of separation?
You and your partner should each have separate legal advice before you sign such a legal agreement. You should have told each other all there is to know about your financial position.

If you divorce after making a deed of separation, you can agree to keep to the terms of the financial settlement in the deed. If one or both of you want the court to make other financial orders, the court has the power to do this, even if you have a deed. However, if you were each given proper advice by solicitors when the deed was drawn up, and you were both honest about your financial position, the court will be reluctant to change the original arrangements. It may only be able to do this if circumstances have changed in a way that makes the terms of the deed unfair.

Is there any other alternative to divorce?
The alternative is a 'judicial separation' (called a 'separation order' for civil partners). This is not common these days, but it can be an alternative if one or both of you have moral objections to divorce. It is a court order, like a divorce, and follows the same procedure. The court can make orders about children and most money matters in judicial separation proceedings in the same way as in divorce proceedings. As with a divorce, you will no longer have any legal duty to live together.

The main difference is that after judicial separation you cannot marry anyone else. Also, you cannot get a final financial order dismissing all claims against each other (a 'clean break') as part of a judicial separation.

A judicial separation or separation order is not a stepping stone to divorce – they are different things, and you cannot convert a judicial separation or separation order into a divorce. Divorcing later will simply increase your legal costs.

What if we can't agree on financial matters when we separate?
You may be able to get maintenance from your partner from the court, and you can use the Child Support Agency for child support (see 'If you have children'). However, unless you get divorced, it is very difficult to get a court order about who owns the house or other property.

4. Divorce

5. If you have children

6. Supporting your children

7. Money and property

8. Making arrangements should you die

9. Dealing with emergencies

10. Terms used in divorce and family law

11. Further Help

12. About this leaflet

This leaflet is published by the Gurkha Free Legal Advice (LSC). It was written in association with Imogen Clout, a solicitor and mediator specialising in family law.

Leaflet version: May 2009

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