Nicola Williams & Co

Frequently Asked Questions About Separation

What is a "judicial separation" as opposed to separation?

Judicial separation is very similar to divorce with one important distinction - there is no decree absolute. Therefore you remain married although legally recognised as separated and the court has the power on pronouncement of a decree of judicial separation, to make financial orders such as maintenance and property adjustment.

A straightforward separation without any proceedings does not alter your status as husband and wife. You remain each others next of kin and will automatically inherit each others estate in death under the rules of intestacy if there is no will and be able to challenge a will if one exists and makes no provision for the survivor.

Technically whilst you are married (even if separated) there remain important responsibilities to maintain each other and you will have the right to occupy the matrimonial home even if you do not own it.

Who would use judicial separation proceedings?

In reality they are rare. People who hold strong religious or moral views may choose to be judicially separated rather than divorced. Occasionally, where people have been married less than a year when they separate and cannot divorce may use the procedure to claim financial relief. However, if they later wish to be divorced they will have to start all over again to finally receive a decree asolute.

Most people who are separated wait for two years before commencing divorce proceedings based on the fact that they both consent to a divorce.

Is there anything official I need to show that I am separated?

Usually it will simply be accepted at face value by government and local authorities, such as HMRC and council tax offices when you apply for council tax relief and tax credits etc. You will not have an official document as such until there is a decree nisi or absolute.

Who decides what happens to our property when we separate?

You do is the simple answer. You can either talk it through between you or with the help of family or friends or with professional help from a solicitor or mediator.

What if we can't agree?

It depends what the issue is. But essentially you can either start divorce proceedings to enable you to apply for a financial order (for example maintenance and property adjustment) or if you really do not want to start the divorce you can ask the court to make an order for maintenance whilst you are still married or apply for an order for sale of the house or for an order setting out how a mortgage is to be paid etc.

Usually you will be advised to simply start the divorce and apply for a financial order as the other methods will simply involve you in more cost overall.

We have an agreement - do we need to write it down?

It is always adviseable to ensure that you have a proper record of any agreement reached.

A separation agreement will make it absolutely clear what is and what isn't agreed. When you read the agreement you may notice that something you thought was agreed in fact isn't exactly as you planned or expected. This gives you the opportunity to question this and alter it sooner rather than later.

So often people make agreements that break down for some reason they hadn't accounted for, redundancy, birth of another child, illness. Professional help with the drawing up of an agreement from a solicitor will reduce that risk by raising awareness of issues that might evolve further down the line and writing into the agreement what is to happen in the event that they do.

The clearer and less ambiguous a separation agreement is, the less likely that someone will be able to wriggle out of it further down the line. Under current law separation agreements are not legally binding. But a properly drafted deed of separation which has been signed and witnessed without pressure or duress is very likely to be upheld as long as the terms are not so unfair to make that contrary to public interest.

It is important that, as in divorce proceedings, the husband and wife entering into the separation agreement have sufficient knowledge of their legal rights and responsibilities and also that they have a clear picture of each others respective financial position. That doesn't necessarily mean having every detail of every bank account and credit card. But it does mean having sufficient information to enable a reasoned judgement to be made about whether the agreement he/she is signing is a) fair and b) one which he/she wants to enter into anyway.

But our situation is so simple - it seems like a waste of money to have another document prepared.

On divorce, to protect you from future claims, you will need a "clean break". This term isn't actually found in any of the legislation and there is technically no such thing defined specifically as a "clean break order".

A clean break is a specific clause in an order usually made by agreement with the consent of both husband and wife (and so it is known as a "consent order").

The clean break is the wording used to dismiss all future claims both during the lifetime of the husband and wife and also importantly after death.

The order is submitted to the court after the decree nisi and once it is signed by the Judge it will be legally binding. There is only very limited scope for setting aside a consent order once it has been made.

We routinely attach a draft consent order to every separation agreement that we prepare. It is included in the cost so even where your situation is very simple and straightforward you will not be duplicaing or wasting cost by having a separation agreement prepared by us. It will reduce the cost of dealing with the consent order further down the line when you come to divorce. And it will give you the reassurance of haivng all the paperwork completed as soon as possible after separation rather than having it in the back of your mind that it is something you will have to do sooner or later.

 How much does it cost to prepare an agreement?

If you are absolutely agreed it will cost between £250 and £500 depending upon the complexity of what it agreed. A couple separating after a short marriage where there are no children and they are dividing their assets equally are likely to have a simple agreement costing around £250.

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