Separated But Living Together
If you are married or in a civil partnership and are planning a divorce or dissolution from your partner usually one of you will want to move out of the family home. However, this is not always possible.
This could be for several reasons, but quite often its due to financial constraints, as it may not be possible to sustain two separate homes. Another common reason could be the desire to maintain a stable family environment for children. Under either of these circumstances you may have no other option but to remain living together in the same house.
Under the old divorce rules, you could only get a divorce when living in the same house if you could demonstrate to the court that you had maintained separate lives during that period. Furthermore, you were required to explain to the judge how the arrangement worked in some detail.
However, all of that has now changed with the introduction of the government’s Divorce, Dissolution and Separation Act 2020 in England and Wales, commonly referred to as no-fault divorce.
No-Fault Divorce is now Divorce Law
The divorce law in England and Wales has changed to give way for a no-fault divorce. This means you no longer need to wait for a period of 2 years of separation or blame one party for the breakdown of your marriage. What’s more, it is no longer possible for your spouse to contest the divorce, allowing the divorce to proceed without friction or additional costs.
Benefits of no-fault divorce
The no-fault divorce act drastically reformed the divorce process by removing the concept of fault with the aim of simplifying the proceedings and helping couples avoid unnecessary acrimony.
Now it is no longer necessary, or even possible to mention separation when submitting a divorce application. The only ‘ground’, or reason for divorce is the irretrievable breakdown of the marriage.
No-fault divorce has undoubtedly made it much easier for couples who are separated but living together to submit a divorce application.
You no longer need to worry about proving to the court that you are living separate lives while still living together – no more stress about sleeping in separate beds, not sharing chores, meals, housework, etc!
I am cohabiting with my partner and have separated, what happens now?
It’s important for unmarried couples that are cohabiting establish what jointly owned assets there are, such as bank accounts or properties, and how they will be divided between parties.
If you entered into a cohabitation agreement whilst living together, now is the time to produce it to make dividing money and assets as simple as possible for both parties.
If you have children together it’s right that you have discussions about the arrangements for them at the earliest stage possible to ensure the decisions are in the best interests of any children.
If there is any conflict on money, assets, or children’s arrangements, you may need to seek legal advice about your cohabitation rights from a solicitor or visit a mediator.
My spouse and I have agreed to separate, what are our options?
Divorce is not always the first thought on a couple’s mind when their marriage breaks down.
There are both practical, emotional, and financial decisions to be made before applying for a divorce.
Sometimes, couples may wish to enter into a trial separation to either reconcile their marriage or to see how the arrangements made work in real life.
When a married couple is not ready for a divorce but has permanently separated, one option you have is to enter into what is known as a separation agreement.
This legal agreement sets out to the court how any money, assets, or possessions are to be divided in the event of a divorce application. Other important arrangements such as spousal/children maintenance can be included within the agreement.
Why would you get a separation agreement if you are getting divorced?
The divorce laws for England & Wales were updated in April 2022 and the process now includes a 20-week reflection period from the Acknowledgement of Service stage of proceedings to the point where you confirm to the court that you wish to proceed with the divorce application and that a conditional order of divorce is required.
This built-in ‘reflection period’ allows an opportunity for divorcing couples to agree practical arrangements for their future where reconciliation is not possible, and divorce is inevitable. Such matters generally include child arrangements and the division of any matrimonial assets.
Once a financial agreement has been reached you can apply to the court to have your financial order approved. But this can only be done at the conditional order (decree nisi) stage of divorce proceedings – an application cannot be made prior to this point.
When does the financial agreement become legal?
In most cases, the financial agreement becomes legally binding on both parties once the judge grants the final order (decree absolute), providing both parties with a financial ‘clean break’.
While it’s possible to obtain a financial order after the final order has been granted, a delay could affect your entitlement to pension sharing and you may also be liable for tax on any proceeds. Therefore, the best time to apply for a financial consent order is at the point in which the court grant you a conditional order.
However, if you agreed the terms of your financial settlement before filing for divorce the new 20 weeks rule can mean that your finances are more likely to have changed significantly during that period. For example, the value of the family home could rise or fall by several thousands of pounds, or the value of a pension could change considerably.
These potential fluctuations could make a re-calculation and a subsequent re-negotiation of the division of those assets more likely.
Under these circumstances divorcing couples often use a separation agreement as a precursor to a financial consent order so that the agreed split be recorded. As long as the agreement was drawn up without duress the agreement is likely to upheld by a Judge as the court has to take any prior agreement into account in the event of a matrimonial dispute.
Having a separation agreement in place therefore provides financial security and peace of mind to both parties until such time that the financial consent order makes your agreement legally binding. It could also prevent future claims being made on an inheritance or other assets acquired during this period.
Claiming benefits when separated but living together
In some cases, if you have recently divorced or separated, you may be entitled to claim new benefits or receive higher amounts of the benefits you already receive.
In relation to tax and benefits, you are seen to be separated when you and your ex-partner no longer live together.
The separation needs to be permanent in order for you to claim the relevant benefits, therefore if you’re trailing separation you may not be entitled to make a claim for new or increased benefits.
For more detailed information on tax and benefits, you should visit HMRC website and report any changes to your circumstances.
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