Living separately without formalising matters

It is possible to continue to live together – or to live apart – and do little or nothing to formalise this. However, this offers no legal or financial protection. If a separating couple wish to formalise their separation, there are a few options to consider.

Separation Agreement

A Separation Agreement is a written agreement recording the way the separating couple intend to deal with financial matters, as well as other issues, such as:

• Living arrangements
• Responsibility for pets
• Whether they intend to divorce at a later stage.

There is no court process for obtaining a Separation Agreement. The terms are usually negotiated between the couple, in mediation or through solicitors. Signed copies of the final version are usually held by each person or their solicitor – there is no need to obtain court approval of the Separation Agreement.

A Separation Agreement can be enforced through the court like a contract, but is not completely binding if divorce proceedings are commenced later. Either party can ask the court to look at finances again, particularly if there’s a significant change in the circumstances of one or both of the separating couple, or the terms no longer meet the needs of either party.

The Separation Agreement is likely to carry more weight if the couple have entered into it freely, they both received independent legal advice and provided full financial disclosure.

It is important to note that a Separation Agreement does not bring the claims a separating couple have against each other to an end, both the legal and financial ties between them remain.

Judicial separation

Another option is judicial separation: this involves an application to the court. Judicial separation does not end the marriage/civil partnership – there may be personal, religious or cultural reasons why the couple does not want to divorce – and it doesn’t stop either party from pursuing a divorce later on (after their first anniversary). Unlike a divorce, judicial separation can be initiated within the first 12 months of a marriage/civil partnership.

Whilst certain financial claims can be pursued where judicial separation is chosen, such as for maintenance, lump sums and property-related orders, other key financial claims cannot be pursued, such as a pension sharing order. The main downside of judicial separation is that the financial claims a married/civil partnership couple have against each other cannot be ended. Their financial claims will therefore remain open and can be revisited in any future divorce proceedings.

Annulment

Annulment is only available in limited circumstances where the marriage or civil partnership is either invalid (void) or defective (voidable). If either of these can be proved, then the marriage/civil partnership is ended.

Examples include:

a.       Void: either party was already lawfully married/partnered at the time of marriage/civil partnership, they were under the legal age of consent, the relevant legal marriage/civil partnership formalities were not complied with. If a marriage/civil partnership is deemed void, it is treated as never having existed.

b.      Voidable: there was a lack of valid consent (through duress, mistake, unsoundness of mind), either party had what is referred to as a “mental disorder” under the Mental Capacity Act 1983 or (other than in same-sex marriages/civil partnerships) there has been non-consummation of the marriage/civil partnership, either through inability to do so or someone’s wilful refusal. If a marriage/civil partnership is voidable, it is considered valid until the point the final order is pronounced.

An application for annulment based on certain voidable grounds (such as lack of consent) must usually be made within three years of the date of the marriage/civil partnership. To pursue annulment a court application must be made. Unlike judicial separation and divorce proceedings, it is not possible to pursue a joint application for annulment. If annulment is pursued, the separating couple can apply to court to have their financial claims dealt with, including having any financial claims between them brought to an end.

Annulment is uncommon, and strict criteria apply. Specialist legal advice is essential before pursuing this option.

Divorce application

Divorce (or dissolution) proceedings will end the marriage or civil partnership, i.e. the legal tie between the couple. A divorce application cannot be initiated within the first year of marriage/civil partnership.

Under the “no fault” divorce law introduced in April 2022, the separating couple only needs to confirm that the marriage/civil partnership has irretrievably broken down. The divorce application can be made jointly or by one party alone.

Once the divorce application has been issued by the court and responded to, the next step is to apply for the conditional order. There is a 20-week waiting period between the application being issued and when the conditional order can be applied for. Six weeks and one day after the conditional order has been issued by the court, the final order in the divorce can be applied for, which dissolves the marriage/civil partnership.

At any time after the conditional order is pronounced, the separating couple can ask the court to approve an order ending all the claims the couple have against each other, in life and death, as a result of their marriage/civil partnership.

Conclusion

Although these are all options for separating married/civil partners, it is only a divorce/dissolution or annulment (where this applies) that the legal and financial ties between the couple can formally be ended. Given it is rare for annulment to apply, commencing divorce proceedings is usually the only way for the court to conclusively deal with financial matters, whether by consent or otherwise.

In our next article we will look at unmarried couples, outlining the options available to a separating couple in those circumstances.