Is Separation The New Divorce?

THERE has been a shift in society in terms of how we view separation and divorce. It is now the social norm for a married couple to separate for a period of time before they get divorced. Separation is becoming the unofficial prerequisite to getting divorced. Indeed, most couples who separate either stay separated indefinitely or eventually get divorced. Some of the reasons that couples favour separation over divorce vary from financial issues; for the sake of the children; the cost of getting divorced; and a fear of moving forward into an unknown future without his or her spouse. This list is by no means exhaustive. The decision to separate or divorce is a serious one and certain issues must be considered, legal and otherwise:

1) “What God has joined together let no man put asunder”- the spouses may be in fear of religious disfavour. Religious leaders will be far more accepting of a separation than divorce, especially in the Roman Catholic faith. Divorce in religious circles is still largely discouraged; the spouses will be reminded that they have entered holy matrimony and that requires respect and reverence; and not abandoning one’s partner when the marriage is not working as well as it should.

2) Closure: there is a finality to getting divorced. The marriage is recognised by the courts, the law and society at large as being over and concluded. There may be a perceived middle ground with separation, in which the couple may still be living together but in separate bedrooms, like housemates. Alternatively, the couple may live separately but still be equally involved in raising the children. During separation, one spouse may be holding out in the hope that the relationship will eventually be salvaged, while the other openly moves on. It can be a confusing time, if the spouses do not set the boundaries within the separation, which can lead to a state of limbo and uncertainty. A divorce is a clear and definitive indicator that this is not the case; and that the marriage, for all intents and purposes, is over.

3) For the children: some couples stay together or separate for a specified or unspecified period of time for the sake of their children. They rationalise that this self-sacrifice of their own happiness in order to keep the children in a ‘stable’ environment is worth it for their children. In reality, children are very smart, and recognise what is happening especially if they are over the age of seven, and ask a lot of questions. If children recognise that their parents are not happy, this can have a negative effect on their well-being. Your behaviour is an example to your children, and they may model it as adults if you choose divorce. Remember that your divorce CANNOT be finalised until your children’s custody and maintenance have been addressed.

4) For yourself: you deserve to be happy. And if your marriage is not working due to infidelity or abuse, there is no need to sacrifice your happiness, and waste your time with someone who does not love and appreciate you. Ending your marriage officially means that you can freely explore other possibilities to meet someone else; take on a new job or project that will make you truly happy. Being separated may be unhealthy in some cases as this may ultimately inhibit you from moving on.

5) You cannot re-marry: if you stay separated, not only does it hinder your chances at romance and a new relationship, but if you meet someone special and want to get married again, you will not be able to do so unless and until you have ended the marriage through divorce. A divorce can be a lengthy process, and the sooner you start proceedings, the better. Filing the divorce petition, to the decree nisi stage and to the decree absolute can take at least a year to be resolved.

6) Settlement of property: whether it is community property or property purchased within the marriage with your own funds, it must all be settled and divided accordingly. Your spouse may be willing to sell his or her share in the property to you, or vice versa, or the property can be sold and the proceeds divided between the spouses. A divorce can be finalised without settling the property issues, however, it is preferable to do so during the initial divorce proceedings to save time and cost.

Getting a divorce is not usually as financially inhibitive as getting married; the cost varies largely depending on whether it is a contested or uncontested divorce. A contested divorce essentially means that the couple is negotiating what happens to the children of the marriage and the property which may lead to a trial matter; whereas an uncontested divorce means that this has been agreed. We would recommend having a discussion about your affairs with your spouse prior to your first lawyer’s visit, so that a decision has been reached which will save you time and cost.

If you wish to get a divorce quickly, the more you cooperate with your spouse and your attorneys, the swifter this divorce will be concluded. In other words, separation may be unnecessary when the couple has decided that their marriage is not working and that they want to file for divorce. Please note that divorce proceedings can be discontinued at any stage prior to the decree absolute if the couple decides to give their marriage a second chance.

Ms. Trudy O. Glasgow is a practising attorney at the law firm Trudy O. Glasgow & Associates, a court-appointed mediator and author in Saint Lucia (and has also taught law at University level in the UK)* Ms. Glasgow is the current Vice President of the Bar Association of Saint Lucia.

This column is for general use only, for advice specifically for your case, please see your lawyer.

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