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Should you separate or divorce?

08 January 2007

degrees of separationIf your relationship is in jeopardy, should you separate or divorce?

You’ve been arguing for months and divorce is starting to seem like your only option. But, before you take the plunge, a trial separation can help you to decide if splitting up for good is definitely what you want.

Why separate?
Living apart
I don’t want a divorce


Why separate?
For most couples, a separation period can give you both time to reflect on the situation and work out if there is any hope of continuing the relationship. But, in the eyes of the law, a couple is still legally married whether one person has moved out of the house or simply out of the bedroom.
“Frankly, I rarely advise people to separate rather than divorce, as the Court has no power to deal with finances and property, but the costs you pay are similar,” explained Stephen Root, partner of family law specialists, Berwins Solicitors.
This could mean that things turn nasty, if one of you if still living in the family home, for example, and the other tires of living in a tiny rented flat. If, at this stage, you are still on speaking terms, have a frank discussion with your partner about why you are separating. Seeing a relationship counsellor will help you come to terms with the emotional aspects and a family lawyer will advise you on the legalities.

Living apart

If you think that living apart for a while could help heal you relationship, you could both agree to separate informally.
To do this you should both agree on basic ground rules that apply while you are apart regarding financial arrangements, the children, property and debts etc. Put it down in writing and make sure you both have a copy as it can be useful to refer to later. Deciding who will leave the marital home during an informal separation, for example, is the kind of agreement that can later be used to help resolve a divorce settlement.
“Parties can and sometimes do enter into a separation agreement, but this can only be achieved when that both parties are willing to deal with the consequences,” said Root. “Pus, there is one risk with a separation agreement, namely, if there is a dramatic change in circumstances (if one of you wins the lottery, for example), then a Court may well overturn it on the basis the parties would never have entered into the agreement if had they known what was to occur.”

I don’t want a divorce
If, after much soul searching, you decide that a reconciliation is off the cards, there are steps you can take to formally divide up your assets and work out childcare arrangements, without going the whole hog. For some people, being a divorcée is simply undesirable, while others may be against it for religious reasons.
“If you don’t want a divorce, an alternative is to apply for what is known as a judicial separation, which is obtained exactly in the same way as a divorce and is legally binding,” said Root.
Some couples choose judicial separation to protect their pension assets, which would otherwise be lost on divorce, but lawyers would always advise you to opt for divorce, as many believe the formality makes it easier to move on with your life.

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