Where a married couple separates, they may wish to reach a formal agreement regarding financial issues and arrangements for their children without going through divorce proceedings.
A “legal separation” means different things to different people.
Judicial separation is a procedure very similar to divorce which relies upon the same facts and follows the same procedure, except that at the end of the process the couple becomes judicially separated and there is no final decree dissolving the marriage. This has implications for the couple’s rights to claim each others pensions and inheritance. Judicial separation is not a common procedure. It is not necessary to obtain a judicial separation before getting divorced and often, people opt for divorce proceedings when they know that the marriage is over and wish to regulate their financial affairs.
Far more common than a judicial separation is a legally binding separation agreement. A deed is prepared by the solicitor after both parties have been given the opportunity to seek independent legal advice and have exchanged full details of their financial position. The process does not take place through the Court. Providing both parties have been open about their means and have obtained independent advice or being given the opportunity to do so, the separation agreement should be legally binding although it is important to know that no agreement can override the Court’s right to make financial orders in future divorce proceedings. A separation agreement is a good option for some people, but not for everyone and it is important to get specialist advice about the different options available to you.
Some couples choose to take no formal action at all when they have been separated. It is possible to be separated for many years without either a formal agreement or divorce proceedings and this is an option we can consider with you, whilst advising you about the various implications, for instance, ownership of your property, future pension rights, inheritance rights and the effect on your potential claims in divorce proceedings if there is a long delay between separation and divorce.
It is essential to get good advice to weigh up the options available to you.
Read our guide to Maintenance payments for married couples who separate
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