What is a deed of separation?

Some couples prefer not to obtain a divorce immediately after the break-up of their marriage and prefer instead to merely separate. Separation is a purely voluntary arrangement, not a formal legal process. Legally, you remain married and you cannot have a Court order to determine your finances during this period unless the order also deals with arrangements for children.

If a couple is merely wishing to separate and not divorce, or waiting for a period before obtaining a divorce so as not to have to cite one of the adversarial grounds for divorce, we advise entering into a deed of separation. This establishes the ‘point of separation’ for any future divorce petition based on separation, and any financial arrangements contained in the deed of separation take effect from the date the deed is signed. A date of separation itself can also be ‘backdated’ to a point agreed between the spouses provided it can be proven if challenged by the Court.

Whilst a deed of separation is not legally binding unless all the criteria set out in the 2010 case of Radmacher v Granatino have been adhered to, in the event that you do later divorce, it will usually be regarded as persuasive – that is, something the Court may take into account if it is called upon to decide the divorce settlement. A deed of separation also sets out who owned what property at the time of separation, so in the event, for example, that you do decide to divorce and your spouse appears to have disposed of property referred to in the deed of separation, it may persuade a Court to order your spouse to account for the property. You should also note that the Court can disregard the deed of separation completely. The deed may also form the basis of a financial order if you and your spouse agree a financial settlement upon divorce.

You cannot force a deed of separation upon your spouse. If you want to force a split of the marital assets, you will need to petition for divorce. In the event that you cannot come to a financial arrangement with your spouse, you will have to rely on the judgment of the Court, with no guarantee that it will find in your favour.

A divorce will ultimately provide you with more protection than is afforded by separation alone and is the only way to force a disclosure and division of the marital assets.

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