Spurning a spouse, saving a marriage: Separation is a valid option for couples wishing to untie the knot, explains Vivien Goldsmith

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The Independent Online
SEPARATION is a real alternative to divorce and not necessarily a stepping stone on the way to the divorce courts.

It can have great advantages for some people who would be much poorer stripped of the rights of being a spouse.

The Prince and Princess of Wales are clearly no ordinary couple. Their finances, and the constitutional and religious significance of their parting, put them in a category of their own. But there are some interesting lessons to be learned about the options for failing marriages.

There are two sorts of separation - a legal separation, which is a civil contract, and a judicial separation, which goes through the courts.

Hilary Browne-Wilkinson, a partner in solicitors Charles Russell, said: 'With a legal separation you are dependent on the co-operation of both people. The main danger is that the husband is not willing to give all the information needed to work out a financial settlement.'

When there are court proceedings ahead, then applications can be made to the courts to force disclosure of financial information with strict time limits. But this does not operate with a civil agreement.

'The other drawback of having a financial settlement by contract is that if the couple later decide to divorce, the court has to be satisfied with the financial settlement to protect the weak from the strong,' Lady Hilary said.

But Jane Simpson of Manches & Co said that where both parties have been legally represented the courts will normally rubber-stamp the agreement.

This view is taken in The Divorce Handbook, a guide to divorce published in association with Farrer & Co, the Royal solicitors. 'Judges are usually keen that the terms of the separation agreement are maintained, particularly when both spouses received independent legal advice.'

A judicial separation is more like a divorce, with the need to show grounds for the separation. 'Judicial separation is as expensive as divorce as it involves going through all the same steps,' said Margaret Bennett, whose practice specialises in matrimonial work.

This form of separation is an alternative to divorce for those who want to stay married for financial or religious reasons. For instance, when a couple approaching retirement are parting, and one of them has a pension with widows' or widowers' rights, there is a strong incentive to remain married to lay claim to the spouse's pension. If they divorced all rights to the spouse's pension would cease.

Under current divorce law - which is under review - couples must wait for two years for an agreed divorce on the grounds that the marriage has broken down. To have a speedier divorce one partner must show that the other has committed adultery or behaved unreasonably.

But in the meantime some couples will sort out their affairs with an agreed separation.

Lady Hilary said that many couples are continuing to live under the same roof because they either cannot sell their house or cannot afford to set up two households. But they can still clock up time towards the two years as long as they are not 'servicing' each other - that means no sex, no cooking or washing each other's clothes.

If the couple moves into separate households, and the wife takes the main responsibility for the children, she can get financial advantages before any separation takes place.

If she is working, she can apply for the additional personal tax allowance, currently pounds 1,720 (the same as the married couples allowance). This can be paid to her during the tax year in which the parting takes place, as well as the husband retaining the allowance for the year.

One-parent benefit of an extra pounds 5.85 a week for people bringing up children on their own can be claimed on top of child benefit.

(Photograph omitted)

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