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>>Separation Agreements

Anybody is entitled to separate from their spouse or co-habitee. Hence there is no such thing as a 'legal separation', because it is perfectly legal for couples to separate.

Whether or not a married couple has separated is a question of fact, but there has to be a conscious element to a separation If one spouse moves out of the matrimonial home and lives separately and independently then that couple are separated, but there is no separation if one spouse remains in the marital home whilst the other spouse is working abroad, (unless the marriage had broken down before the spouse started working abroad).

The parties to a marriage can even live separately within the marital home; provide they maintain 'separate households'. This means they must not have sexual relations, sleep in the same bed, must not eat meals together and neither must perform any domestic chores for the other. It is important to record the date that such a separation commences because the period of separation will count when calculating the periods of either two years or five years separation that can be used in divorce proceedings as "grounds" which establish the irretrievable breakdown of the marriage.

Once a married couple has decided to separate they can, if they wish, formalize their financial and other arrangements by entering into a Deed of Separation. This is a legal document that records the arrangements which the couple have agreed upon. It often records their intention to divorce once the period of two years separation has elapsed. Alternatively, the parties can obtain a 'Judicial Separation'. This is a process similar to divorce but which leaves the couple legally married, it is often used where one or both party's religious beliefs preclude them from agreeing to a dissolution of their marriage.

A Separation Agreement is not necessarily binding on the Court in any subsequent proceedings following divorce, particularly in any proceedings concerning the children. In financial ('Ancillary') proceedings, provided it can be shown that the agreement was concluded 'at arm's length', that both parties had the benefit or the opportunity to take independent legal advice and that both parties and their legal advisers were appraised of all the relevant facts concerning the financial circumstances of the other party, then the Court will normally ratify the Agreement and it can be embodied in a Court Order made by Consent. This Order will normally made simultaneously with Decree Absolute, the final decree in the divorce.

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