Separation by unmarried partners
This section deals with the situation which applies when a separation occurs between partners who are not married or in a civil partnership.
It is often said that there is no such legally recognised state as 'common law marriage'. However, if a separation occurs between partners who are not married, the legal arrangements and rights that apply are not the same or as extensive as those which apply to partners separating at the end of a marriage. This is the case even if their relationship mirrors all aspects of a marriage.
In the same way that there are no legal formalities which have to be followed when partners decide to live together without getting married, partners can also go their separate ways with very little in the way of formalities if the relationship breaks down.
However, there are some situations where the law is able to step in if the parties are unable to agree.
Mediation and collaborative law
If partners are unable to agree arrangements relating to any aspect of the consequences of the separation, for example, with the arrangements for children, it is equally possible for the parties to attend mediation or ask solicitors to deal with matters using the collaborative law process, as would be the case if they were married.
Separating partners often find it useful to enter into a separation agreement. This is a document which formally regulates what the parties have agreed, for example in connection with arrangements for children and finance.
The following are some of the points commonly recorded in a separation agreement:
- From a specified date the parties are living separately
- Each party has made an honest and complete disclosure of the respective financial positions
- Name the children of the parties and set out the arrangements agreed for the times to be spent by them with each parent
- Set out the financial arrangements agreed, particularly in connection with children, usually covering maintenance and, where applicable, school and/or university fees
- Record what has been agreed about the division of household assets, cars and the like
- Deal with responsibility for liabilities both immediate and in the future
- Confirm that neither party will incur debts in the future for which the other party may be liable e.g. school trips or other expenses
- If the former partners have joint ownership of a house or other property, record what has been agreed about how that jointly owned property is to be dealt with
- In some rare cases, where a house or other property has been owned by only one of the partners, the other may have a claim on it. For example, this might arise where the owning partner has promised the non-owning partner that, although the property is only in one name, it can be treated as belonging to them in their joint names.
Separation by married partners
This sub-section deals with the situation which applies when a separation occurs between partners who are married or in a civil partnership.
Sometimes, former partners who have been married decide to separate but not to go through with a divorce. For example, this might happen where there are religious reasons for not obtaining a divorce, or if there were to be a divorce a surviving partner would lose the right to succeed to the pension rights of the partner dying first.
Where this situation arises, the rights of the former partners can be set out in a separation agreement as outlined above. However, it is important to remember that in such cases, separated spouses have the same rights that would be available to them if they were to be divorced.
Is a separation agreement legally binding?
A separation agreement cannot actually purport to oust the jurisdiction of the Court. In other words, when an agreement has been reached, it is still technically possible for one or other party to make an application to the Court for a different level of financial provision. If, however, a) each party has been separately legally advised, b) if there has clearly been full and honest disclosure of each party's financial circumstances (usually evidenced by a schedule attached to the agreement) and c) there has been no significant change in circumstances which it would be inequitable and/or unrealistic to disregard, the agreement is likely to be upheld. As a matter of public policy people need to be able to move on with their lives from a reasonably clear and certain base.
Where a couple have decided that they are going to be starting divorce proceedings there is generally little point in drawing up a specific separation agreement. If the couple are able to reach agreement, whether through direct discussions or with the assistance of solicitors or through mediation etc., the usual approach would be to draw up that agreement in the form of a draft consent order. Within the divorce proceedings the Court's approval can be sought and the Court will signify that approval by making the order by consent.
The agreement reached by the couple will then have the same force as any other Court order and can be enforced in precisely the same way.
Why have a separation agreement?
The most common use of separation agreements tends to be in a situation where a couple know that they want to separate and know that they want to divide up their assets but for whatever reason simply do not want to get divorced. This could be because they are intending to wait until one of the separation-based grounds for divorce becomes available to them. In those circumstances the agreement will usually provide for steps to be taken once divorce proceedings are initiated to redraw the separation agreement as a consent order and obtain the Court's approval within the divorce proceedings.
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- Co-Parenting after Divorce or Separation Part 1
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