Can temporary separation help before divorce?

It is not unusual for a couple who are having difficulties in their marriage to agree to a trial, or temporary separation before deciding on divorce.

A trial separation can obviously be a useful way to save a marriage, rather than going straight ahead with a divorce, without giving the marriage a chance.

Divorce proceedings can obviously be stopped before they are completed, but they do tend to have a life of their own, and the mere fact of issuing them can bring a marriage that could have been saved to an end.

A trial separation will give the couple the space to reflect, to decide whether they wish to remain married, and indeed whether the marriage can be saved.

So yes, a temporary separation before divorce can be helpful. But what about the legal consequences?

A very short trial separation would probably have few or no legal consequences, especially if there are no dependent children.

However, the parties are unlikely to know at the outset how long the separation might be, and a longer separation could well have legal consequences.

These consequences may be immediate or may relate to the effect of the separation upon any subsequent divorce settlement.

Immediate consequences of permanent or temporary separation

Separation obviously means that at least one of the parties will have to find somewhere else to live and that the joint family income will have to be shared across two households.

This in turn leads to issues relating to arrangements for any dependent children and to maintenance for those children (and, possibly, for the less well-off party).

Hopefully, the parties will be able to agree on these matters, although they may well require legal advice in order to do so.

And if matters can’t be agreed between the parties directly then they should consider trying to agree to them with the help of mediation. For more information about mediation.

If they are able to agree to matters then they may wish to formalise the agreement by entering into a written separation agreement, which should be drawn up by solicitors.

And if matters cannot be agreed then an application to the court may be required (or to the Child Maintenance Service for child maintenance).

The court can obviously sort out arrangements for children. It also has the power to award maintenance to one spouse, even if the marriage is continuing, and can even order that one spouse pay a lump sum to the other.

What the court cannot do, however, is make property or pension orders for the benefit of one spouse, as it can if there are divorce proceedings.

Long-term consequences of separation

Obviously, the temporary separation before divorce may end with the complete breakdown of the marriage in any event.

If this happens then the separation can have consequences for any final divorce settlement.

For example, one of the factors to be taken into account in a divorce settlement is the duration of the marriage. In general, the court will consider the marriage to have come to an end when the parties separated. A long separation may therefore have consequences for the settlement, especially if it had not been a long marriage prior to the separation.

Another possible consequence relates to any wealth accrued after the separation. In certain circumstances that wealth may be left out of account when deciding the divorce settlement, meaning that the party who accrued the wealth will keep it, rather than it going into the ‘pot’ for division.

As stated above, a trial separation can be a very useful way of testing whether a marriage that has got into difficulties has indeed broken down. Many marriages have no doubt been saved by a ‘successful’ trial separation.

However, it must be understood by the parties that a trial separation can have legal consequences. It is therefore best if they both take independent legal advice before embarking upon the separation.

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Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child law, and arbitration. Please contact the team to speak to one of our specialist solicitors.

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