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Separation Advice for Divorcing Couples

Facing the decision to end your marriage can be traumatic and a relationship break down can affect all areas of your life. Nevertheless, it’s important that your separation goes as well as possible when unfortunately, a relationship fails, and you go your separate ways.

Even if you both want to separate, the pressure to make the correct decisions can be massive, especially when you have children. Worst still is being confronted by your partner’s decision to separate, which can leave you feeling hurt and distraught.

In this article we will cover what some of those difficult decisions are and offer our best advice. But first, in simple terms, a Legal Separation, also known as a Judicial Separation, allows married couples to legally separate without the marriage being ended.

One reason for doing this is that your marriage may have lasted for less than one year and you want time to work out if you really want to end the marriage or civil partnership.

What is the Difference Between Legal Separation and Divorce?

In Brief, a legal separation allows a married couple to make formal decisions like finances and living arrangements while remaining married, and this process differs from a divorce in several ways.

Firstly, unlike divorce you can seek a legal separation any time after getting married, you don’t have to wait until you have been married for a year. Furthermore, you don’t have to prove the marriage has broken down irretrievably to separate, but simply indicate the grounds on which you want the separation to occur.

Also, a separation does not have the same effect on pensions as divorce. As you are still married you can’t obtain a pension sharing order, often the biggest disadvantage to legal separation as opposed to divorce.

More information can be found by reading: Legal Separation Vs Divorce

What is meant by legal separation?

Before entering a divorce many couples decide to separate on a trial basis to resolve disputes. If planning to divorce then it is wise to enter into a separation agreement, and put the agreement in writing, so it can be later referred to during the divorce process to prove consent between both parties.

Furthermore, couples tend to enter a period of separation before they divorce as most divorce cases in England & Wales are based on the ‘separated for at least 2 years’ rule, prior to filing their divorce petition.

Wait to start a new relationship

This suggestion is not merely based on moral considerations, but more of a strategic recommendation. A new boyfriend or girlfriend appearing on the scene can be disruptive to the negotiation process already underway for the Separation Agreement.

Regardless of which partner ended the relationship, a new relationship can cause strong emotions for the replaced partner. This can result in barriers such as some kind of financial backlash, parenting disputes or a general escalation of conflicts.

Depending on the nature of the new relationship, it can also have a bearing on whether and how much spousal maintenance may be payable.

Furthermore, the new partner may have to become a factor in parenting arrangements for the children. For example, the new partner will be scrutinised to determine whether their presence around the children is in their best interests.

Therefore, if you can wait until your Separation Agreement has been finalised before starting a new relationship you will avoid unnecessary complications that can potentially disrupt otherwise amicable negotiations.

What decisions must you take when separating?

There are certain decisions you need to make when you separate from your spouse.

Firstly, if you have children you must make decisions about child maintenance, and decide with which parent they will live and where. These decisions are quite separate from the legal paperwork to officially end your relationship.

If you are married or in a civil partnership you need to divide your assets and property. But please note that dividing assets and property is different if you’re not married or in a civil partnership and reside in England or Wales.

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    Children In Divorce or Separation

    If you have children you must assign financial support for your children (child maintenance) and also make arrangements for looking after the children.

    Usually it’s best to keep arrangements informal where possible because divorce courts will not normally decide who a child lives with or spends time with if they think the parents can agree between themselves.

    This is known as the ‘No Order Principle’. Simply put, a court, when considering if it should make an order, must make sure that it should only do so if it would be better than making no order at all.

    Therefore the court will not intervene and make an order unless it can be shown that it would be in the child/children’s best interests to do so.

    Normally you need only go to court if worried about your children’s safety or if you, and/or your children, have experienced domestic violence or feel vulnerable or controlled by your ex-partner.

    You could also choose to go to court if the parent the children live with won’t agree acceptable terms of access and visiting rights to your children.

    If a court order is necessary the court will be guided by the principles in the Children Act 1989

    Deciding where to live

    You’ll need to decide if one of you stays in the home while the other moves out, or if you both move out and end your tenancy or sell the house.

    You don’t have to go to court to decide what to do when you separate if you can agree with each other, but don’t feel pressured into taking a decision if you feel it’s not right for you.

    There are very few situations where your partner can make you leave your home. They can’t change the locks or force you to leave, so try to work out what you both want and need.

    How to divide up any shared assets

    You will need to work out how much money you have in savings or investments and include any debts you share, like credit cards or loans.

    If married or in a civil partnership you can ask for financial support from your ex-partner when you separate. This is called Spousal Maintenance and is a regular payment to help pay bills, rent or mortgage and other living costs like council tax.

    You’ll also need to tell your local council you’ve separated if you get housing benefit or council tax reduction.