Do I need a Deed of Separation before I divorce?

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We are often asked by clients – What are some of the options available when they are contemplating divorce.

If you have not been married for at least 3 years, or if you just want time apart without actually going through a divorce, you may consider entering into a Deed of Separation.

A Deed of Separation often contains, amongst other things, the terms of 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.

 .The list above is non exhaustive. If it has been agreed between parties, the Deed of Separation can also state that the parties wish to deal with certain ancillary issues only during the divorce proceedings.

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 a 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.

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Under what circumstances is a Deed of Separation most suitable?

In our experience, a Deed of Separation is suitable if:

1.   you are unsure if you really want a divorce and you just want to have time apart.
2.   you are sure you want a divorce, but you have young children or financial issues and the time for divorce is not yet right.
3. you are sure you want a divorce, but you do not yet satisfy the requirements to file for divorce (for example, if you have been married for less than 3 years).

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