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Separation

If you and your partner separate, the relevant law depends on whether or not you are married.

If you are married to each other then there is a huge body of law which may be relevant, falling broadly into the following categories:

  • You may need maintenance for yourself and your children. If the maintenance for yourself cannot be agreed you would have to apply to the courts. If maintenance for the children cannot be agreed, then in most cases an application will have to be made to the Child Support Agency. If need be you can make an urgent application to the court for a maintenance order to enable you to pay your way until such time as a comprehensive financial settlement is reached. For further information see our page on Financial Issues.
  • If it looks as though the separation is likely to be permanent, you will probably want to try to reach an agreement with your partner on the distribution of your capital assets, including your home if you own it and also entitlement to any pensions. We would encourage you to discuss matters with your spouse, if this is feasible, although only after receiving advice as to your legal entitlement. You are much more likely to be satisfied with a settlement reached by agreement than with one which is imposed on you by the courts. However, if it is not possible to achieve an agreement then an application to the court may have to be made, but in most circumstances this can only be done once divorce proceedings have commenced. For further information see our page on Financial Issues.
  • Children – Hopefully you can agree between yourselves on the arrangements for the children, i.e. where and with whom they should live and what contact the other parent should have with them. It is certainly best for the children if you can agree such matters. If you cannot, then we can try to negotiate an agreement on your behalf, or if appropriate, refer you and your separated spouse to mediation; if necessary we can assist you in applying to the courts for orders determining the question in dispute. For further details see our page on Children.
  • Occupation of the matrimonial home – If you cannot agree on who should occupy the matrimonial home, both in the short term and in the long term, then you may be able to make an application to the courts for an Occupation Order. The court can in certain cases declare that one party is entitled to occupy the house to the exclusion of the other, perhaps for a limited period of time or until the issue is finally determined in divorce proceedings. This is particularly useful in cases where there has been domestic violence. In most cases where children are involved, the courts will say that the parent with whom the children are to live should be entitled to occupy the matrimonial home with the children.
  • Domestic violence – Protection from domestic violence can be sought both through criminal proceedings and civil proceedings. If a criminal offence has been committed, then the Police may be called. Even if there is no physical violence there may be a criminal offence if there is a course of conduct which amounts to harrassment. Protection can be obtained by means of an application to the courts for an injunction. This is an order restraining someone from doing something – known as a non-molestation order. You can also apply for an injunction against a former partner, or on behalf of a child who is living with you, if you think the child is at risk of harm.

If you and your partner are not married to each other, then the relevant law may be quite different:

  • Maintenance – If you are not married then you will not be able to apply for maintenance for yourself (unless you are registered civil partners), but only maintenance for your children. Once again unless the rate of maintenance can be agreed, it would normally be necessary to apply to the Child Support Agency rather than to the courts.
  • If you cannot agree between yourselves on the distribution of any capital assets that you own, including the house you live in, then (unless you are registered civil partners) the powers of the court are much more limited than they are if you were married. For more information see our page on Financial Issues.
  • Children – In most respects the courts do not distinguish between cases where the parents of a child are married and cases where they are not. There is, however, one important difference between the two and this relates to Parental Responsibility – which broadly means all the legal rights and duties which parents have in respect of their children, including the right to make decisions as to their upbringing. If you are married, then you will each have parental responsibility. If you are not married the mother will always have parental responsibility and, in respect of births registered after 1 st December 2003, the father will also have parental responsibility if his name is on the child’s birth certificate. If the father does not acquire parental responsibility automatically he can acquire it by entering into a Parental Responsibility Agreement with the mother and registering it with the court, or, in the absence of agreement, the father can apply to the court for a Parental Responsibility Order.
  • Occupation of the house – There are provisions in the law which enable the courts to determine who should occupy the house where you last lived together.
  • Domestic violence – You can still apply for an injunction to protect you from a violent partner. You may also be able to apply for an Occupation Order, although different criteria apply in the case of couples who have not been married to each other.

If you are separated or are about to separate, you should seek legal advice. Contact us to arrange an initial consultation with one of our solicitors. The first half hour consultation is free of charge, and of course commits you to nothing. Telephone us on 01332 293 293 or e-mail us at solicitors@aflp.co.uk.



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