Tue 21 Nov 2023

Separation and Divorce: What is the Difference

It's not uncommon for High Profile individuals to keep the end of their relationship quiet for a long time. Most recently it was revealed that Will Smith separated from his wife, Jada Pinkett Smith in 2016. Jada apparently made a promise that there would never be a reason for them to get a divorce. What's the benefit of such an agreement? Confidentiality and an absence of third-party hype and speculation, as well as a real sense of consensus between the parties at a very sensitive time in their lives?  

Why separation and not divorce?

It can be said that when parties decide they no longer wish to live together as husband and wife, it is at that point they may consider themselves as having separated. Couples can continue to share the same accommodation, but intimacy has ended, and they no longer share tasks which are traditionally shared between married or cohabiting couples. It's common in Scotland for the financial and/or child related needs to be captured in a negotiated written contract between the parties. That’s commonly called a Separation Agreement or Minute of Agreement. Often the consequence of that contract is to resolve all of the contentious issues arising from the breakdown privately and achieve practical resolution of the most important aspects of the separation, such as child care arrangements and financial issues. This has the benefit of being entirely confidential and out of the eye of the public. Parties can also choose not to register the agreement in a public register for extra confidentiality. In Scotland these contracts are binding on the courts (under one rare exception ).

Why might a person want divorce

Being married is a personal status which has certain legal consequences but once separated parties have no greater claim to any assets which might accrue after separation. There are lots of reasons why parties would ultimately seek to divorce at some point. They may want to remarry or need closure. Divorce may also be necessary for a technical element of pension sharing. It may ultimately be necessary, where the other party has refused to agree or negotiate any matters of dispute in respect of financial provision, as Divorce is the vehicle on which such claims are progressed. Capital claims, property transfers and pension sharing orders, absent agreement between the parties, can only be pursued within proceedings for divorce. Once a matter is before the court there is no right to absolute confidentiality although the court has a duty to protect the identity of children.

The Caveat

Never assume the Scottish and English process is the same. They are not and failing to take expert advice can have important financial consequences.

If you would like to discuss how we can support you, then please do get in touch with our Family Law team.

Written by Senior Solicitor, Luisa Reid.

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