We often get asked about how a couple might legally separate without the finality of a divorce. It may be that they are not yet ready to divorce for personal reasons, they can’t divorce for religious reasons or simply that the immediate routes for divorce i.e unreasonable behaviour or adultery do not apply to them.
If it is the case that the immediate routes for divorce don’t apply, then at present the separating couple must wait for two years before divorcing with the other spouse’s consent. Simply waiting this long to organise their affairs prevents them from being able to move forward. There are ongoing campaigns driven by Resolution (www.resolution.org.uk) to pressurise the government to bring a ‘no fault’ divorce made all the more relevant by the recent Owens –v- Owens case where Mrs Owens petitioned for divorce on the grounds that the marriage had irretrievably broken down and that the husband had behaved in such a way that she could not reasonably be expected to live with him.
The application was refused as the Judge found the evidence to be ‘flimsy’. An appeal by Mrs Owens was also dismissed. Although the law was applied correctly in this case, it nevertheless highlights the need for a sea change in divorce laws which reflect modern day realities.
Until there is a reform, couples who feel unable to use fault in a divorce or for one of the reasons listed above, they can opt to set out the terms of their separation in a document called a Separation Agreement also known as a Separation Deed. The document will record arrangements for where the children will live and how much time they will spend with the other parent, division of assets including properties and what formal proceedings might be undertaken in future for example if there is to be a divorce when it will be started and by whom. It can also include any other factors specific to your individual case.
The key is the word agreement. These documents can only work with couples who are willing to co-operate either directly, via mediation or through negotiation with solicitors. The Courts will not be involved. Due to this there are questions about the legal enforceability of Separation Agreements. As long as Separation Agreements are entered into with full and frank financial disclosure from both parties and each having had their own separate legal advice, providing there are no intervening factors or major changes to either parties financial position then the terms of the document should be upheld in Court. This would be a complicated procedure and you should contact us for specific advice tailored to your case.
Separation Agreements can be used as a holding position until parties are ready to divorce. It is normal practice at that time to incorporate the terms of the Separation Agreement into a Consent Order which is a legally binding document available only when divorcing.
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