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Legal Separation

woman returned wedding ring to husband . Divorce concept

Whether or not a married couple has separated is a question of fact. If one spouse moves out of the matrimonial home and lives separately and independently then that couple are separated. They do not need a certificate to confirm the separation and they will each be treated by the State as single, assuming that they have not left to live with another adult.

There has to be a conscious element to a legal separation. There is no separation if one spouse remains in the matrimonial home whilst the other spouse is working on a project abroad unless the marriage also broke down before the spouse started working abroad.

A couple can have separated although they continue to live in the same house. For this to be the case they have to have concluded that their relationship is over and to live in separate “households” i.e. stop sharing their lives and living arrangements. Such a period of separation can count when calculating the periods of either two years or five years separation that can be used in divorce proceedings as “facts” which establish the irretrievable breakdown of the marriage.

The parties can, if they wish, formalise an agreement reached on separation by entering into a Deed of Separation. This is a legal document that records the arrangements which the couple have agreed upon. Alternatively, the parties can obtain a Judicial Separation. This is a process similar to divorce but which leaves the couple legally married. The prime purpose of such procedures is not to ratify the separation but to record consequential provisions, usually in relation to finance and children.

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