If you separate from your spouse but do not want to apply for a divorce or cannot because you have not been married for one year but still want to settle the financial aspect it is possible to have a Separation Agreement drawn up. This is a document that will set out the agreement which has been reached and can then be put into a Consent Order if/when you decide to divorce.
The Separation Agreement can also set out any arrangements regarding any children of the family, such as residence and contact. If matters are not agreed an application can be made to the Court. If you require information regarding this please look at our page titled ‘Children’ or contact us to discuss.
A Separation Agreement is not legally binding like a Consent Order but it does show the intention of the Parties and will therefore be considered by the Court if either of you were to apply for Ancillary Relief in the future.
We can assist you with the negotiations of the financial settlement and draft the Separation Agreement on your behalf.
Another option is Judicial Separation which is often used if the Parties have not been married for one year and therefore cannot divorce or for people who do not wish to divorce, for example, for religious or other personal reasons. For more information on Judicial Separation please see our fact sheet titled Divorce – Frequently Asked Questions, which can be found on our ‘Divorce and Financial Remedy Proceedings’ page.
Unfortunately, couples who are not married do not have the same rights and protection as couples who are, even if you are living together.
For example, there is no legal provision for maintenance and the law regarding making a claim against your partner’s assets is very different. The most common claim is where a couple who were living together separates but the property is owned solely by one of them and the other wants to make a claim against the property.
There are no clearly defined guidelines regarding this but at EMD Law we can advise you on whether or not you may have a claim. There is also no notion of fairness or reasonableness built into the law and you will need to establish a beneficial interest either based on financial contribution or common intention.
Some cohabitants are attempting to overcome this problem by having a Cohabitation Agreement drawn up when they commence living together, which sets out the living arrangements. For more information please see our page titled ‘Cohabitation and Pre-Nuptial Agreements’.
After a breakdown of a relationship it is up to the parents to decide the arrangements regarding any children. However, if there is a dispute either party can apply to the Court to resolve issues. For more information please look at our page titled ‘Children’.