When am I legally separated?

A question I get asked quite a lot is, "When am I legally separated?"

This question is relevant for those either wanting a deed of separation or who want to rely on two or five years' separation to establish irretrievable breakdown of the marriage, the only ground for divorce.

There is no magic in separation. It is a question of fact. There is no need for one person to leave the home. Rather a couple can be separated if they occupy separate households under the same roof. This means that they have separate lives albeit in the same home. For example they will each cook, clean, do washing & shop for themselves as well as occupying separate sleeping accommodation.

A deed of separation, or separation agreement, is generally used where the parties cannot rely on a fault based fact for divorce or simply want to be separated but not divorced. It evidences the separation and can recite any agreement that the parties have arrived at about financial matters whether on an interim or a substantive basis. It can also deal with child arrangements. It would also normally recite that one spouse will divorce the other once two years' separation has accrued. It can have appended to it the draft of a financial order enshrining what the parties have agreed in the deed.

Deeds of separation do not involve the court. A petition for judicial separation does. In a process very similar to divorce, it results in a decree of judicial separation which releases the parties from their duty to live with one another. The decree does not dissolve the marriage. In judicial separation proceedings the court can be asked to make financial orders similar to those available in divorce. However finances can never be totally finalised unless there is a divorce.

A spouse might simply want a separation if they have religious reasons against divorce, if they have been married for less than a year or if they want time and space to work out if they want to end the marriage.