Separation can be finalised either by way of Separation Agreement or Judicial Separation.
In relation to either scenario the appointed solicitor is obliged to discuss with the client the options of reconciliation and counselling/mediation. The solicitor is also obliged to advise the client about a Separation Agreement as an alternative to Judicial Separation.
A Separation Agreement is a legally binding document entered into by a married couple or civil partners which sets out the agreed terms on which they will live separately. It sets out each party’s rights and obligations to each other. It is the more cost effective and efficient way of dealing with a separation although it is not always appropriate in circumstances where there is lack of agreement and/or a number of assets to deal with. There are certain standard fundamental clauses in a Separation Agreement that apply in every case and there other clauses that are tailored to suit the individual circumstances and instructions given.
The main issues dealt with in a Separation Agreement are:
- The agreement to live apart and the date of separation. The date of separation is important if the parties wish to Divorce at any time in the future. Under current legislation the parties must have lived separate and apart for at least two out of the three years preceding a Divorce application.
- Agreed arrangements in relation to custody and access to children
- The occupation and ownership of a family home and any other property
- Maintenance and lump sums payments
- Responsibility and indemnity for debts
- Succession rights
- Any other individual issues as agreed between the parties
The agreed terms to form a Separation Agreement can be achieved through mediation and then a solicitor is instructed to draft the Agreement or terms can be agreed and drafted between solicitors.
It is possible to have the Separation Agreement made an Order of the court. While this is not always necessary it is probably more important where there are children involved and also if either or both parties have a pension.
Children - In the event that there are any issues in relation to custody and access or maintenance an application can be made to court to deal with any breach of an Order.
Pension - A Pension Adjustment Order can be made by the court. This will define how the pension benefits are to be divided up to the time of separation and then protect the pension benefits going forward.
Judicial Separation is an application to court for a Decree of Judicial Separation. Obviously this is the more expensive and possibly lengthier way of proceeding but sometimes it is the necessary option when the parties cannot agree the terms of their separation and/or there are a number of assets. However, it is always possible during the process for the parties to agree the terms of the separation which will then form part of the Order when the Decree of Judicial Separation is granted. These are known as Ancillary Orders (additional Orders).
The same issues as set out above are dealt with in a Judicial Separation.
Application for Judicial Separation
An application for Judicial Separation must be based on one of the following grounds:
- One party has committed adultery
- One party has behaved in such a way that it would be unreasonable to expect the other spouse to continue to live with them
- One party has deserted the other for at least one year prior to the application for the Decree
- The couple have lived apart from one another for at least one year prior to the application for the Decree (whether the parties agree or not to the Decree being granted)
- The court is satisfied that a normal marital relationship has not existed between the parties for at least one year before the date of the application for the Decree
The last two grounds are the most commonly used grounds in an application for a Decree of Judicial Separation
Granting a Decree of Judicial Separation
In order for the court to grant a Decree of Judicial Separation, the court must be satisfied that:
- Grounds for the application exist (see grounds as set out above)
- The parties have been advised about mediation and counselling
- Proper provision has been made for the welfare of any children
Ancillary Orders (as referred to above) are made at the same of time as the Decree is granted and these Orders deal with such issues as set out above.
Deed of Waiver
Deed of Waiver is a document signed by both parties at the time of signing a Separation Agreement or following a Decree of Judicial Separation being granted. This confirms that you both waive your entitlement to each other's property into the future and the ownership thereof and that you are consenting to all future property transactions that either of you might engage in.