PROCESS: Part 4 (2min)

Separation Agreements and Judicial Separation (UK + USA)

Legal Separation UK

When a marriage, or civil partnership, runs into difficulties, often neither spouse wants to immediately issue a divorce, or dissolution petition, and sometimes they don’t wish to divorce at all; but, upon their separation from each other, do want to put some formalities in place to help the family deal with such things as parenting arrangements and financial arrangements.

It is possible to obtain a formal Order from the Court – through a Decree of Judicial Separation.

The majority of people who separate with a Decree of Judicial Separation, do consider their marriage, or civil partnership, to be at an end, but either do not wish to pursue a divorce, or dissolution, petition straight away, or cannot issue a Petition until at least 2 years separation has occurred (i.e. they do not have grounds to pursue adultery or behaviour petitions). Or it may be they want to stay legally married to protect the immigration status of their spouse.

When the Court issues a Decree of Judicial Separation, the husband and wife remain legally married, or the couple remain in a Civil Partnership. In the main, the couples who take this route have a moral or religious objection to divorce.

Within the Judicial Separation procedure, the Court can deal with most financial issues as it can under divorce and dissolution of partnership. It cannot deal with pensions however. This is because, under Judicial Separation, the parties do not divorce, or have their partnership dissolved, so can usually receive pension benefits upon the death of the other in the same way as married couples or civil partners who remain living together in the family home.

A Separation Agreement can be prepared which sets out the arrangements agreed between the couple concerning their children and/or finances. It should be noted that this is not entirely risk free, as one spouse, or civil partner, could ask the Court to make a different financial order at the time of the divorce or dissolution, if they have become unhappy with the original agreement. The Court can override the terms of the Separation Agreement if it is felt reasonable to do so.

To reduce the risk of the Agreement being overturned by the Court, it will usually be taken into account if the following has occurred:

•  That each of you has provided full financial disclosure to the other
•  That each of you has had the opportunity of taking independent legal advice
•  There have been negotiations between you, which have been free of undue pressure, and where each of you has been able to put forward proposals and options for settlement
•  That your respective solicitors have drafted the Separation Agreement and provided advice on its terms, prior to your signing it.

In other words, if the agreement is drawn up in the same way as any agreement – including a Cohabitation Agreement by the way – using good practice as outlined in the above points, then the agreement will usually stand up in court even if one of the couple decides to ‘change their mind’ about what they agreed to further down the line.

Legal Separation California USA

Many separation agreements later serve as the foundation of the divorce agreement, so negotiated terms may indeed wind up being permanent, so just like in the UK, although they may not be binding they need to be carefully considered. If agreement is not amicable then you can spend a lot of money and still be unable to form another relationship without it being seen as infidelity, as you are still legally married to someone else.  Further information is here: Click to View

Is It Worth It?

With the processes involved, the question is, why not just get divorced? This is likely to be the case in most jurisdictions.

For those who don’t really want the divorce, why not consider a Post Nuptial Agreement providing some financial independence from each other and more security should you divorce in the future? That would often be a more productive and useful way to use up your time and efforts.