03. 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
• you 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 husband or wife 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 husband or wife. 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.

Do I need legal advice for a deed of separation?
Both you and your husband or wife should have separate legal advice before you sign such a legal agreement. You should both have told each other all there is to know about your own financial positions.

If you divorce after making a deed of separation, you can both 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 both given proper advice by solicitors when the deed was drawn up, and you were both honest about your financial positions, the courts will be reluctant to change the original arrangements. They may only be able to do this if there has been a change in the circumstances that makes the terms of the deed unfair.

Is there any other alternative to divorce?
The other alternative is a 'judicial separation'. This is not common these days, but it can be an alternative if one or both of you have religious objections to divorce. It is a court order, like a divorce, and follows the same procedure. The court can make orders about money matters and children in judicial separation proceedings in the same way as in divorce proceedings.

The main difference is that, at the end of the proceedings, you cannot remarry. But you no longer have any legal duty to live together and the court can make all the financial orders it would make in divorce proceedings.

Judicial separation should not be seen as a stepping stone to divorce. It will simply increase your legal costs if you then go on to divorce.

What if we can't agree on financial matters when we separate?
There are ways of getting maintenance from your husband or wife from the court, and you can use the Child Support Agency for child support (see 'If you have children' for more information). However, unless you get divorced, you cannot get a court order about who owns the house, or other property.