In order to become separated, a couple simply need to start living apart. No formal steps need to be taken.
Sometimes, however, a couple may be treated as separated even though they are continuing to live at the same address. The test is not straightforward and you ought to discuss your own particular circumstances with us. The test includes considering whether a couple has created two separate households at the same address and whether they regard themselves as free to lead their lives without reference to the other.
If a couple agree to separate and also agree a financial settlement this can be recorded in a separation agreement. This is a document prepared by solicitors and is signed by the husband and the wife. It typically records
- the date of separation
- an agreement to divorce after 2 years’ separation
- agreements about financial matters
- a commitment to ask the divorce court in due course to make a final financial Order in the same terms as the financial agreement recorded in the separation agreement.
Very occasionally, when the couple later divorce, one of them might ask the court to depart from the agreement about financial matters that had been recorded in the separation agreement. If this agreement is broadly fair, both parties took legal advice about it and they gave full disclosure of their finances at the time, then Courts are very reluctant indeed to depart from the agreement: the basic rule is that people should be ‘held to their bargain freely entered into’.
A financial agreement recorded in the separation agreement will accordingly be ‘extremely influential’ but it can never be 100% binding. It will be one of the 'circumstances of the case' to which the Court must have regard when it weighs up the case as a whole. For example, the Court might not uphold the agreement recorded in the separation agreement if someone won the lottery during the period of separation, or if there was some other dramatic change in circumstances.
Separation leading to divorce
Two years’ separation is one of the grounds for divorce but only if at the end of the two year period both parties agree.
Five years’ separation is grounds for divorce to which there is a defence only in rare circumstances
Decree of Judicial Separation
Occasionally, the Court can be asked to make a Decree of Judicial Separation on much the same grounds as for divorce. The couple remains married but can ask the Court to make financial orders. Such petitions are extremely rare and are usually used where one or both parties object to a divorce on religious grounds.