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.