From time to time, people contact me and asked me to provide a letter confirming that they are separated. This may sound straightforward, but in fact it is more complicated than it seems.
The letters are usually required by organisations who want some kind of evidence to support an application for things like the single person’s council tax discount or student finance. I can understand the desire of administrators to have some evidence to back up an application, but how do you prove that somebody is separated?
A letter from a solicitor confirming that a person separated is probably going to be evidentially worthless. I have to explain to people who want these letters that the best I can do is to provide them with a letter saying that the client has told me that he or she separated from his or her spouse or partner on such and such a date. I can’t provide a letter that says that I confirm that they did separate on that date, because I have no idea whether or not that is accurate or not. All I can repeat is what I have been told by the client.
People also often contact me telling me that they want a “legal separation”. I have to explore with them what they actually mean by this.
Separation is a largely informal process. A spouse or cohabitant will move out of the house. There is usually no need for it to be formalised by any kind of legal process. Where a couple are separating and reach a financial agreement, it is prudent to have a separation agreement (also known as a deed of separation). It provides a written record of what they have agreed to do about issues such as maintenance, division of assets and perhaps a timetable for a divorce. However, can this be described as being a “legal separation”?
To my solicitor’s mind, a “legal separation” means something that has been ordered by the court. While a marriage or civil partnership can be brought to an end by the court in divorce or dissolution proceedings, it rarely makes orders in which separations are formalised.
The court does have the power to make a decree of judicial separation. Such proceedings are very similar to getting divorced, but they do not bring the marriage to an end. They are designed to be used by people who have a moral objection to a divorce, but that is quite rare in this day and age. In my experience, this process is generally only used by people whose marriage has broken down within its first year. Divorce proceedings cannot be issued until the marriage is a year old, but if a marriage breaks down at a very early stage and there is a need to apply to the court for a financial order, the only way in which this can be sought during the first year of the marriage is if there are judicial separation proceedings.
Precisely whether or not a couple are separated can sometimes be a little difficult to discern. Where one party to the relationship physically moves out of their home, they are clearly separated. However, many people describe themselves to me as being separated when they are in fact still living under the same roof. It is possible to be regarded as being separated under the same roof and to obtain a divorce on the ground that the marriage has usually broken down, citing the fact of two years’ separation with consent or five years’ separation without consent.
This can be problematic; the court will need to be satisfied that a couple have lived separate and apart under the same roof. For example, it will need to be satisfied that they have had separate bedrooms and that they have led separate lives. In my experience, most couples who live separately under the same roof are not sufficiently separate and apart to get divorced. They still take meals together, cook for each other, do each other’s laundry etc. In those circumstances, the court is unlikely to take the view that they are actually separated. (This particular problem will come to an end with the introduction of no-fault divorce; the government has recently reintroduced the draft Divorce, Dissolution and Separation Bill in Parliament and, unlike previous attempts to pass the bill which foundered as a result of prorogation and the calling of the general election, this time it is likely to pass given the cross-party support for it.)
There are also other cases where it is not entirely clear whether or not one party has actually moved out. As an experienced family practitioner, I have learned to be cautious when I ask people to give me their current address. I have lost count of the number of times that somebody tells me that their “official” address is the matrimonial home, but on further investigation, it transpires that they have not lived there for some time. These people are wary of saying that the matrimonial home is no longer their home because they may feel that they risk losing their right to a fair share of the equity in the property if they admit that they live somewhere else. (In fact, this is not the case).
There are also cases where people have not properly moved out. They frequently return, for example to see their children or collect belongings. They may spend occasional nights there. These clients tell me that they are “sort of” separated, whatever that means.
Trying to define separation is like trying to define an elephant; it is very difficult to define, but you know it when you see it.
12 January 2020
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