What is the difference between Divorce and a Deed of Separation?

Divorce is the legal process when you legally end your marriage. Sometimes, a married couple may not want to divorce yet but wish to live separately from each other as a precursor to divorce.  In such situations, it is not uncommon for parties to enter into a written Separation Agreement.  A separation agreement is a legal contract between a married couple. It’s a written record of how a couple has settled issues related to their separation and how the divorce is to be dealt with.

Since a Deed of Separation records the date when parties have lived separately and apart from each other, it is common for a divorce to proceed on that ground of separation.

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Terms in a Deed of Separation

A Deed of Separation often contains the terms of an agreement that parties have reached regarding issues such as:

• When divorce proceedings are to commence;
• Who to commence the divorce;
• The reason for the divorce;
• The agreed custody, care and control arrangements between parties for any children;
• How the matrimonial assets are to be dealt with during the divorce;
• Any interim arrangement between the parties until the divorce proceedings have commenced and/or concluded;
• Any agreement on maintenance for the spouse and children.

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The Deed of Separation is not filed in court; divorce papers still need to be filed

Both husband and wife are required to sign the Deed of Separation to render it effective.

One common misconception is that once a Deed of Separation is signed, it will automatically lead to divorce without any further steps being taken.  This is not true, as you still need to file for divorce even if you have signed a Deed of Separation.

A Deed of Separation is a private document between husband and wife and is not filed or registered with any government department or court.  So the only people who know that you are separated are you and your spouse.

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Under what circumstances is a Deed of Separation most suitable?

A Deed of Separation is suitable if:

•  you are unsure if you really want a divorce, and you want to try out a period of living apart.
• the time for a divorce is not yet right because you have young children or financial issues.
• you do not fulfil the other grounds for divorce (such as unreasonable behaviour or adultery), and both of you realised it was a mistake getting married.

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