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SEPARATION
Divorce is, of course, not the only way to deal with a
marriage that is effectively over, and there are several
reasons why separation may be preferable:
(1) There may be religious or moral objections to divorce.
(2) The marriage may not irretrievable and the couple may hope
one day to resume living together.
(3) The couple may plan to divorce after 2 years thus gaining
a more amicable divorce than would happen if one party cited
behaviour or adultery against the other.
(4) The marriage may be less than 12 months old, so an
immediate divorce is not a possibility.
Once the decision to separate has been taken, there are
various ways to go about it:
An Informal Arrangement
The couple can simply agree that one of them will move out
of their joint home.
A Formal Separation Agreement
This is by far the preferable course because agreement can be
reached regarding such matters as finances and the children.
It is important that both parties should consult a solicitor
before signing a formal separation agreement, not only so that
they can be properly advised of their rights, but also because
the court is more likely to endorse the provisions of the
agreement in any subsequent divorce if the agreement had been
properly drafted and the parties fully aware of what they were
agreeing to.
Judicial Separation
This is now rare, since it used to be the last resort when
couples were unable to obtain a divorce before the law was
reformed.
A judicial separation is merely confirmation by the court of
the entitlement to live apart; the parties cannot re-marry and
if one should die without making a will the other will inherit
as spouse under the Rules of Intestacy.
Like a divorce, you have to offer one of the grounds
(behaviour, adultery, etc) but do not need to prove that the
marriage has irretrievably broken down.
One of the reasons for obtaining a Judicial Separation may be
that one or both parties have a religious or moral objection
to divorce. However, judicial separation does not preclude
divorce at a later time and it would be possible for one party
to later divorce the other, e.g. after five years on the basis
of the separation.
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