Simple separation

Judicial separation is different from separation. If you are thinking of a legal separation from your spouse or of a separation before divorce then take legal advice first. If you are already separated then you would be wise to seek legal advice about getting a divorce as soon as possible. We cannot over-emphasise the importance of this advice.

The first point to mention is that people often talk of a ‘legal separation’. What they usually mean by that is that they simply separate. That is all. It is possible to have a judicial separation but that is something very different (and hardly ever advisable). Often when spouses separate they do so because they think they do not have grounds for divorce and so they intend to wait until they have been separated for two years in order to get a divorce based on two years’ separation. This is a mistaken belief. And it is a mistaken belief which can have expensive consequences.

There are many reasons why, if a marriage has broken down, it is a bad idea just to separate. A simple separation rather than a divorce can lead to many problems. First, please understand that if a marriage has broken down beyond repair it is almost always possible to issue a divorce petition immediately. You do not need the permission or co-operation of your spouse and you do not need a qualifying period of separation before seeking a divorce. There are good reasons for divorce in almost all cases of marriage breakdown. If you absolutely cannot live with your spouse then any separation should only last long enough for you to organise a divorce. You should not allow the separation to stretch into months or years unless you have very good reasons for doing so (and have taken legal advice to confirm that it is sensible because it hardly ever is).

Separation is often suggested by one spouse, perhaps as a ‘trial separation’. It may suit that spouse but it is very rarely a wise choice for the other.

The first thing to realise about simply separating is that it is all too easy to let that situation drift into a separation which lasts for many months or years. Pressure to resolve the situation will seem to have disappeared. However, you will not be able to move on with your life and your spouse will still be your next of kin so will very likely inherit in the event of your death regardless of whether you subsequently set up home with someone else.

And, remember, your spouse will continue to be a stakeholder in your income, capital and pension. It is important that you understand the courts decide financial issues between divorcing couples as at the time they are asked to decide and not as at the time of any separation. This means that assets acquired after separation may be taken into account. This offends most people’s sense of justice but it is the way the law works and it is
important to be aware of it. Therefore by not seeking a divorce immediately you are potentially taking a gamble on the future. Most people do not want to take that risk when it is pointed out to them.

You will probably think that when you have been separated for two years you will be able to have an ‘amicable divorce’ on that ground. You must understand that divorce after two years separation is based on consent. It is not uncommon when those two years have elapsed for that consent to be withheld (for all sorts of rational and/or irrational reasons). If that were to happen then you might have to wait until you have been separated for five years before you can obtain a divorce without consent. Five years is a very long time to wait. Separated spouses do in fact very often withhold their consent to a divorce based on two years’ separation. Or, to be more precise, they may make their consent condtional on financial terms which are wholly unreasonable. You do not want to find yourself in that type of situation.

Finally, and this does happen more often than you may think, you may lose touch with your estranged and separated spouse. Not being able to locate the other spouse can cause a great deal of delay and complication in getting a divorce even when seeking a divorce based on five years’ separation.

We cannot stress too much that you would be wise to seek legal advice if you are separated or thinking of separating from your spouse. Separation usually results in the very opposite of a quick divorce and can lead to many unnecessary and expensive complications.

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