Date of separation and its relevance in divorce financial settlement

8th March 2015 by

 

Relationship breakdown is almost always traumatic and takes on many guises. A couple may drift apart over many years, gradually leading increasingly separate lives, or the end of the relationship may be explosive, involving shock revelations or violence, followed by one spouse leaving the marital home. But, however it happens, the date on which the couple officially separate will have great significance, particularly in divorce financial settlement proceedings.

During ca time of high emotional stress it may be the last thing on your mind to make a note in your diary of a particular argument or situation which will later be deemed the cause of your relationship breakdown, but when the time comes to make a settlement, it will be necessary to pinpoint a date.

Separation doesn’t always mean moving out
Of course, not all relationships end with one spouse or partner moving out. During a period of economic difficulty, it may be impossible for a couple who have decided that their relationship has come to an end to go their separate ways and build new lives for themselves.

There may not be enough equity in the family home to allow each of the spouses to afford a new home from the liquidated asset, or it may be that both spouses want to stay living in the same home as their children.

In some cases, couples who know that they no longer want to be bound by the legal obligations of marriage or civil-partnership, but who can’t move on from the family home, may choose to stay living together under a separated status.

In such a case, family law solicitors can help a couple draw up a formal separation agreement, which will determine the date of separation and set out certain parameters such as rights to cars or the use of holiday homes, and which party will be responsible for paying the mortgage, school fees, household bills, etc.

However, a formal separation document is not a legal ending of the marriage, or legally binding during financial proceedings, and if a spouse wishes to remarry, divorce proceedings should be commenced as soon as possible in the family court.

Decide on the date of separation
Whichever form a separation takes it is useful to mutually agree upon a date of separation as the family court will need this, particularly if the marriage or civil partnership is to be dissolved on grounds of length of separation.

The date of separation can also have significance in financial order proceedings (ancillary relief) as certain monetary aspects, such as Capital Gains Tax, will be directly affected by the date of on which the couple ceased to be living together.

In cases where a date of separation cannot be proved and a spouse wishes to seek divorce on grounds of abandonment, the court will need to see proof that the petitioner (person applying for divorce) has attempted to inform their spouse of their application for a divorce. In cases where the whereabouts of the respondent (petitioner’s spouse) are unknown, the court will require evidence that the petitioner has made all possible attempts to trace the absent spouse.

If the whereabouts of the respondent cannot be determined and the court is satisfied that the petitioner has made every effort possible to find them, then it will accept the specified date of separation unless it is formally challenged.

Healys’ experienced family law solicitors can help
Whether you are about to separate from your spouse or have decided that you wish to apply for a divorce or civil-partnership dissolution, the family law team at Healys is on hand to give you all the legal advice you may need.

Our divorce solicitors have been able to advise many families and help them negotiate their way through the necessary legalities of ending a marriage or civil-partnership and we have learned that by listening sensitively to each situation, we can offer the best and most appropriate legal advice for the circumstances.

For more information on the service we provide for clients who are separating, please contact Catherine Taylor on 01273 669 124 or email catherine.taylor@healys.com for Brighton enquiries. For London enquiries please contact Jane Sanders on 020 7822 4107 or email jane.sanders@healys.com