Going Your Separate Ways
How to get a Legal Separation
Christmas is now over, the New Year has rung in and festive decorations have been taken down. Many of us however, have come through the festive season feeling anything but jubilant about the state of our marriages. We may not be sure that we want the finality of divorce but it may be that we want to consider a period of separation from our partners. How do we go about achieving this?
A legal separation, (sometimes known as a judicial separation) can provide you with all of the tools to bring a legal end to your marital obligations, and allow you and your partner to move on with your own lives. You can set down your financial position and work out all arrangements for the children and all of the matrimonial assets, including the matrimonial home.
Separating from your spouse without having at least a separation agreement leaves you exposed. You could still be liable for your partner’s debts if they don’t pay. Why? Because some of those debts could be treated as marital debts and both of you could be liable.
The main difference between a legal separation and a divorce is that if you opt for the separation route, you will still technically be married and therefore cannot legally marry anyone else until you have obtained a divorce.
Having witnessed many legal separations and divorces over the years, I can tell you that neither is more or less painful than the other. Therefore, do not think of legal separation as a lesser alternative to divorce, but rather as a different way of ending your life as a married couple. Legal separation lets you work out if you do actually want to get a divorce or if you just need some time and space to work out what you wish to do. It can be treated by you as a form of ‘trial separation’.
A Step by Step Guide – The Procedure for Legal Separation
- A legal separation form needs to be filled out and two copies sent to your nearest divorce centre. If you are the person sending the petition, you are called the ‘petitioner’, and your spouse is the ‘respondent’. The original marriage certificate or a copy from the same official source will need to be attached. The petition form gives you the opportunity to write about the reason for applying for a judicial separation; for example if there has been unreasonable behaviour you can detail it here.
- The court fee for filing the petition is £365 (as at the date of this blog) and should be sent with the petition.
- The Court will send the respondent (your spouse) a copy of the petition, a form that acknowledges that he/she received your petition and a form that details arrangements for children (if applicable). The respondent has eight days from the date of receipt to acknowledge service.
- If the respondent wants to defend or dispute your petition for separation, there is a twenty-one day period (after the initial eight days) to lodge their answer at Court.
- If the respondent doesn’t defend the petition in that time, the Court will send you (the petitioner) a copy of the Acknowledgment of Service, and you will then have to swear an affidavit and lodge a further form with the Court. Your petition will go before a District Judge, who will decide whether to grant you a separation or not.
- If there is a dispute about the costs of the separation, there will have to be a hearing to resolve the issue.
- The decree will either be read out in open court or posted within the court building (if there are no arrangements for children which still need determining).
- A formal ‘Decree of Judicial Separation’ will be posted to you.
Legal Separation, the Family Home and Other Assets
As in the case of a divorce, a financial settlement must be reached between separating parties so you can both move forward with their lives. The ideal way to achieve this is for both partners to negotiate a Separation Agreement between you. Such an agreement should deal with:
- How the money received from the sale of the family home will be split or, if the home is to remain unsold who is responsible for the mortgage and bills?
- Who is to live in the family home if it is not sold?
- How much, if any spousal maintenance is to be paid?
- How the family’s debts and loans are to be divided up and paid?
- How investments and other assets such as furniture and cars etc.. will be shared
If you are unable to reach an agreement, then the Court can make an order to divide up the assets and set a suitable amount for spousal maintenance, if appropriate to do so. However, please note that in a legal separation, the Court cannot give you the other partner’s pensions.
It is also important to point out that if you have a Will, it will not be automatically revoked if a legal separation is granted (unlike with a divorce) and to change your wishes, you will need to have another one drawn up by your Solicitor.
Arrangements for children in a Legal Separation
If you have agreed what will happen to the children before filing your separation petition, complete the Statement of Arrangements form and attach it to the petition. Alternatively, if the Court has made an order about the children, then this order should also be attached to the petition.
If you have not made arrangements or cannot come to an agreement about the children, then a District Judge will either refer you to a CAFCASS officer for a conciliation session or order a court hearing to resolve the matter. If an Order for Contact or Residence is made by the Court, this will be sent to you along with documentation for your legal separation.
The Advantages of a Judicial Separation as Opposed to a Divorce
If a legal separation is almost identical to a divorce, then why not simply apply for a divorce?
Not everyone wants to get divorced and many people are unsure about what to do next. We often need time and space to make own decisions as these decisions will affect the rest of our lives and those of our families.
Getting separated can allow you to retain some of the benefits of being married which would disappear on divorce such as medical benefits and bereavement benefits.
Some people may be opposed to the very idea of divorce for cultural, personal or religious reasons. Legal Separation is a viable option for these people as it does not carry with it any of the connotations of getting a divorce.
The process of going through a separation can be stressful for all involved. I understand this is a time of massive upheaval in your life, and there is a lot to sort out, especially if you have children.
If you are considering separating from your partner, then I would seek robust legal advice so that you know all of your options. A good lawyer will be committed to advising you and assisting in the process of obtaining legal separation.
All of the team in the Saracens Solicitors’ family department are members of ‘Resolution’, which is an organisation of lawyers who follow a constructive, non-confrontational approach to family law.
We follow Resolution’s Code of Practice which assists us in achieving better outcomes for our clients.
If you would like information on legal separation, please phone our London office on 020 3588 3500 to speak to one of our Solicitors.