FAQs Separation

1. What does the law consider to be 'separation'?

In practice, separation takes place when one of the parties in a relationship withdraws from the relationship. Parties could still be living under the same roof but would be considered to be separate. The law recognizes both de facto and de jure separation. Parties are said to be de facto separated when their relationship seriously breaks down. Parties could remain living together in such a state for years until they would decide to formalise the separation and lay down the terms in writing. A separation that is agreed to in writing is called de jure separation. Alternatively, separation occurs when both parties have agreed and consented that the relationship is over.

2. What's the difference between separation and divorce?

Spouses have an obligation to cohabitate, maintain and offer moral support to their partners. Once partners are separated they are no longer obliged to live together and maintain each other materially and emotionally. Spouses who have not divorced may not remarry. Spouses are only free to remarry if they obtain a divorce or an annulment.

3. Do I have to go to court?

Separation can be concluded without stepping into a courtroom. If parties agree on the terms of separation they would only need to have the terms approved by the Family Court. Once approved by the Family Court the parties are free to sign the agreement before a notary.

Parties will have to go to court if they disagree on one or more of the issues mentioned in the separation agreement.

4. How are Bank Accounts, Property and Assets Divided?

There are two ways that property can be split. You and your ex-partner can either agree on how the property should be split or the property can be split by a determination of the Court. It is recommended that you do not say or promise anything to your ex-partner before you meet up with a lawyer.

5. Can I separate without getting divorced?

There is no legal requirement whatsoever to divorce. Spouses may remain separated for an indefinite period. Divorce is only required if one wants to remarry. 

6. What is included in a separation agreement?

The important parts of a separation agreement include details on how will all the moveable and immovable property be apportioned between the parties. The agreement may include details on who will continue will to reside in the matrimonial home and for how long. In certain circumstances details on whether one of the parties is to pay any alimony payments to the other and for how long will be included. If there are children the agreement will include details on the child custody, child-access arrangements and whether one party is to pay child-support maintenance to the other parent. Other details, such as whether parties wish to revert to their former surnames are included in the agreement of separation.

7. Will I lose my claim to the home if I move out?

A spouse who leaves the matrimonial home without any just cause may be held to have given rise to the separation. This in itself does not automatically mean that such spouse will forfeit his or her rights over the matrimonial home. A spouse may have good reasons to leave the matrimonial home, such as the fact that the other spouse is being violent or abusive. One should always engage a lawyer to assist in such circumstances.

8. My spouse abandoned the matrimonial home. Can I change the lock?

The general answer is no unless authorised by a court to do so.

A spouse who changes the locks to the matrimonial home, or any other property that is shared with the spouse, will be depriving the other spouse of accessing such property.  Such an act amounts to the offence a pretended right (it is a criminal offence for one to exercise on another person a right which he or she pretends to have). 

The spouse wishing to change the locks of the home or any other property shared with the spouse needs to file an urgent court application, explaining the circumstances of the case and asks the court to authorise that such spouse is authorised to change the locks to the home. The court will authorise the changing of the locks in many situations.

 

9. Will my spouse inherit me after separation?

There are several factors that will determine whether a spouse will inherit the other spouse following separation. 

In the absence of a will, spouses have a right to inherit their spouses. If a spouse makes a will and does not include the spouse in the will, the spouse has a right to a part of the deceased spouse's estate. Following personal separation, spouses may lose the right to receive by will from the other spouse.

Spouses that are defacto separated have a right to inherit each other.

Spouses that are separated by a notarial agreement will not inherit each other if their agreement includes a provision stating that they renounce to each other's inheritance. Lawyers often include such a provision in the separation agreement. Spouses that are separated by notarial agreement and have not included such a clause almost always inherit each other, unless there is some issue that frustrates the inheritance. 

Spouses who are separated by court decree are also likely to inherit each other, especially if the court did not condemn one of the spouses to forfeit his or her inheritance rights from the other spouse. In certain cases, the court may deem that one of the parties was to blame for the separation and would condemn such party to forfeit the right to inherit the other spouse.

Following a divorce or an annulment, spouses will lose the right to inherit each other.

In all circumstances, a spouse who lost the right to inherit the other spouse may still be included in the will of the other spouse.