This week there seems to have been a glut of media stories about high-profile couples taking “time apart”, or “living apart” from one another. Perhaps the recent research from Stowe Family Law, showing that 18% of parents begin the new school year contemplating major changes to their relationships, isn’t confined to us mere mortals.
With separation in the news, I’d like to take a closer look at what is, at least in England and Wales, a relatively simple process. When two people separate, they agree to live apart from one another for a temporary or extended period.
The following excerpts are taken from my book, Divorce & Splitting Up: Advice From a Top Family Lawyer.
A Deed of Separation
If you wish to separate from your spouse, you can enter into a physical separation, which you can do while still living in the same house.
In addition to this, or instead of it, you can enter into a Deed of Separation. This records your agreement to separate, and an agreement to divorce in the future. It can also record an agreement about arrangements for any children during the period of separation, and afterwards on divorce. It can also record an agreement about financial arrangements during the separation and upon divorce. Your solicitor will be able to advise you.
If court proceedings are necessary, you can apply for a “judicial separation”. For example, a judicial separation may be required if you have not yet been married for a year, or if one or both of you have religious objections to divorce.
A judicial separation is a similar process to divorce. You can obtain all the financial orders that you would upon divorce, with the exception of a clean financial break.
In judicial separation proceedings , applications to the court can be made in relation to the children. If there are no proceedings, stand-alone applications can still be made in relation to the children under the Children Act 1989.
Why I do not like the concept of “separation”
I must admit, I am not a fan of separation. I see it as a halfway house offering little if any consolation to either party, for the following reasons:
- It is not necessary for divorce. The idea that you have to separate before you can get a divorce is a myth that is seemingly perpetuated by every pub lawyer in the land. It is true that two years of separation, providing both parties consent, can be one of the “facts” used to prove that “irretrievable breakdown” of the marriage has taken place. It is also true that if there is no consent, then the couple must live apart for five years before one of them can seek a divorce against the other’s will. However, these are not the only ”facts”: the others are adultery, unreasonable behaviour and desertion for two years or more.
- In my opinion, it is impossible to recover from the effect of a broken relationship during a period of separation. Both parties are leading completely separate lives, meeting different people and perhaps becoming romantically involved with others. At the same time they are not truly free, whether they consented to the separation or not, because they are not yet divorced.
In surveys of situations that cause the most stress to people, divorce regularly comes second only to the death of a spouse. In a way, divorce can be compared with bereavement: the body has to be buried before one can even begin to think about getting over a death. Divorce is a way of breaking with the past.
Sometimes one partner has decided that the marriage or relationship has come to an end, but cannot bring themselves to tell their partner the awful truth. Instead, this person hides behind the charade of a separation.
“Let’s see how it works out for the next few months”, they say, giving false hopes and dreams to their partner. Months later, when these dreams are shattered, it is at a substantial emotional cost to the partner who worried, waited and hoped because they were not in a position to accept the blindingly obvious.
I believe that if a marriage is going to succeed it does so with both parties living together. If neither party can live with the other, or if one party feels that the marriage is over, then the kindest way out is to end that marriage as quickly as possible. Sometimes it is necessary to be cruel to be kind.
What do you think? Can separation ever work? What have your experiences been?