3.2.1 Introduction

Sometimes, when a marriage gets into real difficulties, a Husband and Wife (or often just one of them) may decide that a period of separation, whether temporary or permanent, has become necessary.

For any of a variety of reasons, however, the parties may decide that they do not want to go through a divorce.

What are their other options?

The main options are:-

(i) to consider counselling
(ii) to make interim private and voluntary arrangements between themselves
(iii) to enter into a written agreement about these arrangements (sometimes in a formal Deed)
(iv) to apply through the Courts for a Decree of judicial separation and, perhaps, to ask the Court to make a financial Order in those decree proceedings
(v) to involve the Child Support Agency (CSA) to obtain financial help from the other spouse in providing for the needs of any children
(vi) to apply through the Courts for financial remedies other than in connection with divorce or judicial separation proceedings.

They may just choose to separate without taking any formal legal steps.

There is no requirement to take any such steps. If the parties can come to interim arrangements between themselves (eg about paying the mortgage and the bills, the arrangements for the children’s welfare and so on) then there is no obligation to turn to the law.

3.2.2 Settled Arrangements – Separation Agreements

One or both of them may decide that they would feel more secure if they came to settled arrangements spelled out in a written agreement (often in the form of a Deed). This will often be called a Separation Agreement (or Separation Deed).

Such agreements can be very useful as either party can, if necessary, apply to the Court to enforce the agreement if the other should fall down on his or her obligations.

But a word of warning – it is legally possible for a Court later (eg in divorce proceedings) on the application of either the husband or the wife, to refuse to stand by the terms of such an Agreement (or Deed) if it seems to the Court that different provisions should be put in place.

(The only way to ensure finality of financial arrangements is to have a Court Order made in divorce proceedings which states that all remaining claims are dismissed once and for all.)

You can, though, increase the chances of a Court later looking favourably on a Separation Agreement (or Deed), if certain steps are followed, namely (before making the Agreement) if each party has proper, independent legal advice, if full and frank financial disclosure has been exchanged between the parties (usually through their Solicitors) and provided that one party does not have undue influence or a dominant negotiating position in relation to the other.

It is sensible, therefore, for each party to have independent legal advice if a Separation Agreement (or Deed) is contemplated.

3.2.3 A decree of Judicial Separation

This does not bring a marriage legally to an end.

As with divorce, the process of obtaining a decree of judicial separation is begun by a petition presented to the Court by one of the parties. Here the grounds are the same five “Facts” as are used to support a divorce petition but without the additional requirement to show that the marriage has “irretrievably broken down”.

A decree of judicial separation ends the legal “duty” to cohabit. This may seem odd, for there is nothing in law to prevent either party from leaving the other anyway – but it does mean that neither the husband nor the wife can be in “desertion” of the other after such a decree is obtained.

Obtaining a decree of judicial separation is a formal step.

For some people, it is an easier concept to deal with than a divorce for, technically, the parties remain legally married – and, as a result, the parties are not freed to enter into new marriages by the granting of a decree of judicial separation

It avoids the religious objections which some people have to divorce.

It also allows either party the choice to use the Court process to sort out, eg any financial or property issues, especially where the other spouse proves intransigent and will not negotiate sensibly, or at all. The Court has the same range of powers open to it to sort out the financial and property issues in judicial separation as it does in divorce proceedings.

It is still possible to petition for divorce after a judicial separation decree has been pronounced.

In some (but not necessarily all) cases, a divorced spouse’s claims to benefit on the death of their former spouse under a pension scheme may be lost. If only a judicial separation decree (and not a divorce decree) has been granted, however, this problem may not arise as the surviving spouse will be the widow or widower of the deceased.

In truth, there are relatively few judicial separation cases – perhaps because if the marriage has reached the point where the Court is being involved then judicial separation is seen as a duplication of the cost if there are then to be divorce proceedings later on.

3.2.4 The Child Support Agency (CSA)

The Child Support Agency can be used whether separated parties intend to divorce or not. Generally, if a separating husband and wife can agree a suitable level of financial support for any children, payable by the “absent” parent, then there is no need to turn to the CSA.

In cases, though, where the parent who has the day to day care of the children is reliant upon certain State Benefits, such as Income Support, then the CSA will automatically seek to be involved.

The CSA is dealt with in more detail elsewhere in this guide.

If separated parties cannot agree on child maintenance, then it will generally be necessary to turn to the CSA, if the parent with care of the children wants to press for a financial contribution from the other party towards the cost of caring for the children.

3.2.5 Other financial remedies through the Courts

If one spouse is proving difficult then, short of applying within divorce (or judicial separation) proceedings, there are other legal steps which can be taken to sort out certain financial issues. In practice, these tend not to be used with great frequency, but briefly they include the following:-

(i) a specialist magistrates’ Court known as a Family Proceedings Court can deal with applications by a spouse for maintenance for that spouse plus a limited lump sum, if appropriate
(ii) a County Court (the same Court that also deals with divorces and Judicial Separation) can deal with a maintenance application for a spouse