Separation: Separation Without Agreement, Separation By Agreement

It is a matter of common knowledge that divorces are on the increase throughout the Western world and particularly in the United States. This phenomenon has challenged the attention of socially minded persons--moralists, religionists, scholars, and statesmen. There is probably no single subject within the range of public interest upon which there is greater misapprehension as to its real meaning and significance, which is calculated to prevent clear thinking and useful action, than that of divorce. Divorce simply dissolves the legal contract between the parties and it is usual to resolve financial issues between a couple at the same time, invoking the powers of the court to vary property rights if they cannot be resolved by agreement. This means that the ownership by a husband or wife of a house, shares or money in a building society or bank can be varied by the court when it decides how the financial claims are to be met.

Separation Without Agreement

Separation is often an established fact before either party takes legal advice as to its consequences for the marriage. Absence of information about the consequences may put the party who has left at a disadvantage. It might have dire consequences where one party has resources which are spirited abroad and have disappeared by the time divorce proceedings are taken.

The cost of separate living is greater than the cost of living together but any attempt to return to the matrimonial home may cause further problems, such as an application to oust the returning partner. The time which has elapsed since the separation began is a factor which the spouse who remains in possession of the house may wish to use to bolster his or her position, particularly if children are involved.

Separation By Agreement

It is often the case that couples separate by agreement so that they will be able to divorce when two years have elapsed from the date of their separation. If financial matters are not resolved in an agreement made at the time of separation or shortly afterwards they will be resolved after the divorce. The court exercising its powers to vary property rights takes into account the financial circumstances of the parties at the time of its decision. One of the parties may have changed jobs or inherited a substantial legacy, or rearranged his or her financial affairs in such a way as to present a very different financial picture from the one which would have applied if the divorce had taken place earlier.

There are several benefits for couples who negotiate a separation agreement. First, they may wish to make financial arrangements based on an immediate division of their capital or provision for the proportion of home and money which each will have. They may also wish to ensure that arrangements for paying for children are recorded and that there is no dispute about where the children are to live and how much time they will spend with each partner. It is usual when providing for future housing arrangements and spousal and child maintenance to record the couple’s intentions, and the terms of the agreement become the terms of an agreed order when the divorce takes place. The reason why legal advice is desirable is to ensure that each party has given full financial disclosure to the other so that the agreement is made in full knowledge of the overall position. Otherwise the agreement could be set aside.

There is no guarantee that, after an agreement has been made, the parties will not fight over financial matters or the children in the divorce proceedings, but it is less likely; if a financial application is made because one party’s circumstances have wholly changed, the other would ask the court to take account of the separation agreement as a factor in determining the issues. The effect of a separation agreement is that while the parties remain married they are relieved of the obligation to live together.

The alternative to separation is immediate divorce. This requires allegations of unreasonable behaviour or adultery. Both are likely to engender or perpetuate bad feeling at a time when emotions are at their most volatile. Disputes over children and money are likely to be exacerbated and the costs increased.

One of the problems about separation, and the reason why it is relatively little used, is that poorer couples, particularly women with children, cannot afford it. The proposal that people should be able to divorce even if not separated and without having to blame the other is expected to be the cornerstone of reform of the divorce process. Obviously there will continue to be cases where parties want to separate and make their arrangements first where they can afford to live separately.