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Can living together while separated affect your divorce?

2nd October 2020 - Allysha Michael

The breakdown of relationships may inevitably cause emotional separation but for various reasons, a physical separation may not be immediately possible nor desired.

A physical separation may not be economically viable or it may be a conscious parenting decision made for the emotional wellbeing of the children. Further, in light of the current global pandemic, there may be novel reasons for continuing to live together in spite of a separation such as a loss of employment which makes it financially strenuous to seek a separate property to live in, or if one of you are high-risk and shielding with an underlying health condition which could prevent you from being with your children if they are removed to a separate household.  

As the lockdown has shown, living together for prolonged periods of time can be a challenge for even the most amicable of couples. For couples contemplating a divorce, this is made more challenging by having to live by definitive parameters in order to satisfy the legal requirement of separation.

In order to commence divorce proceedings in England & Wales, you must be able to show that your marriage has broken down irretrievably by establishing one of the five facts -  two of which are based on legally required periods of separation.

Whilst the legal requirement of separation does not require couples to live physically separate, it does require you to live your life separately. There is no rule book to live by but you will be expected to demonstrate separate lives by relying on evidences such as sleeping in separate rooms, avoiding communal meals or any family activities together and making separate contributions to the household outgoings. Nevertheless, given a new shift in our way of living amidst COVID-19, there may be more intricacies involved in issues like childcare and working from home that previously never arose.

Although the implication of living together to satisfy the requirement of legal separation is largely subjective, there are some areas where living together will result in determinate effects to a divorce process.

For instance, if you are seeking to rely on unreasonable behavior or adultery as one of the facts for your marriage breaking down irretrievably, you will not be able to do so if you continue to live with your partner for more than 6 months from the date the adultery was committed or more than 6 months from the date of unreasonable behavior taking place. 

It is therefore important to consider seeking expert legal advice as a seemingly simple decision such as sharing household expenditure could fall short of the legal requirement. You would not want to find yourself in a scenario where you think you have spent the pre-requisite length of separation to file a divorce petition only for its validity to be disputed

As demonstrated in the case of Mouncer v Mouncer*, living in separate bedrooms but sharing childcare and common meal times does not satisfy the legal threshold of separation. The judge refused to grant the couple a divorce on the basis that a rejection of a normal physical relationship coupled with an absence of normal affection does not constitute separate lives.

A useful process to note would be to enter into a legal separation agreement. This is *not* a divorce agreement by any means and does not result in the dissolution of your marriage. It is a legal document to draw up the terms of your interim living arrangement during separation which usually sets out the division of finances such as rent or mortgage payments for the property you are currently living in together as well as childcare expenditure. This is by no means an exhaustive list as it can incorporate any reasonable terms that you may want to negotiate with your partner. The agreement will serve as a form of regulation during this period and can eventually be relied upon as a strong indication to satisfy the court of the intent and execution of a valid legal separation when either party commences divorce proceedings with the consent of the other, provided the agreement is enforceable by law (i.e. signed under no duress and with honest financial disclosure).

No matter the situation, it is always advisable to seek out expert advice in the first instance. We at Vardags have a highly specialist team who can advise at every juncture if you are in a similar situation or are contemplating it.

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