When separating, some couples would like to put in place a framework to cover matters such as custody and access, maintenance and family finances, the family home and pensions.
There are two options available to a couple who are separating which depends on how long they have been separated, namely, a Deed of Separation or a Judicial Separation.
Deed of Separation
A Deed of Separation is a good option if you both largely agree on the terms of the separation. It is a legally binding contract that sets out both your rights and responsibilities toward the other person and covers things like access, maintenance, the family home and any other property.
Usually, both parties would instruct a solicitor. One solicitor will draft the Deed on behalf of their client and then the other solicitor will review it. Each person should provide a vouched Affidavit of Means which sets out their financial position before they sign the Deed.
These agreements are essentially a contract between spouses and are not filed with the Court. They will, however, be considered by the Court if the parties later decide to seek a decree of divorce. It is important, therefore, that the Deed properly sets out the agreement between the parties.
As a Deed of Separation is not a Court order, if either party has a pension, the pension trustees are not bound by the terms of a private contract. It would be important to get legal advice as to whether your pension can be properly dealt with in the Deed.
A Judicial Separation is a Court ordered separation, needed when a couple cannot agree on the terms of their separation or where they have agreed but they wish to properly deal with pensions. You can commence proceedings one year after separating. This does not mean you have to physically live apart for one year, but the marriage needs to be over for a year before applying. It is possible to apply sooner based on the misconduct of the other party.
The Court must be satisfied that the criteria are met (including time spent apart). While the parties can agree everything and proceed on consent, the Court must be satisfied that proper provision has been made for each party and any dependents. Full financial disclosure must also take place through sworn Affidavits of Means.
You will not be able to apply for a Judicial Separation if you already executed a Deed of Separation.