A woman once asked “If I can’t get along with my husband, can I live separately from him but not a divorce because I don’t know if at the end of the day, we might be able to patch up?”. The answer is “Yes, you can opt for legal separation”.
A legal separation is like a divorce but it does not end the marriage. The couple is still required to file their petition in Court and state how they want to arrange for the welfare of their children, management of debts and assets. If they are unable to agree on those items, the Court will make a decision. At the end of the legal separation proceeding, the couple will live separately and be bound by the Court order but are not considered divorced. That means they are still married to one another and is not allowed to remarry but they are not responsible for the other person unless the Court otherwise orders.
Why would a couple choose legal separation over divorce? Well, legal separation might be the best option when the couple seriously needs a break from one another. It may be a time of solitude to discover if there is any chance of a future reconciliation. A divorce would mean no way back but a legal separation at least still offers such a room.
If all else still fails, a legal separation may be followed through with a divorce petition. Any of the parties can petition to convert the legal separation to a divorce one year from the date of the legal separation. In such a petition, divorce is granted as of right without further hearings unless there are extraneous circumstances which warrant the Court’s further decision on the matter. In any event, the final distribution of matrimonial assets, custody of children and alimony will be determined during the divorce proceedings.
Matrimonial assets include properties bought during the course of marriage, banking accounts, stocks and shares and cash. Where one party claims that a particular matrimonial asset eg. Immovable property was purchased solely using his / her monies, the Court would try to arrive at a fair distribution of assets between the parties and in most cases, would try to ensure that the welfare of the children are first taken care of. The advice of attorneys would be recommended so that parties can negotiate and agree on the distribution of assets and other issues prior to the filing of a legal separation and / or divorce. Doing so will save time and costs involved in the legal separation and divorce proceedings.