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Yes living together whilst separated can work.  This blog sets out why people may choose to take this route and tips on how to assist with this arrangement.

Reasons why people choose living together whilst separated

With the current global difficulties and the impact of the Coronavirus, many people have been stuck at home. Some are in particularly difficult personal circumstances.

It remains the case that those who have the virus or have been in contact with those who have (or who might have) are being advised to spend up to 14 days in “self-isolation”. Whilst this has an impact on people in numerous ways, it will also impact couples who have recently come to the conclusion that they wish to separate. The question is, how can you separate when living together in the same property?

This of course also applies to all couples who (for numerous reasons) choose to remain living in the same property upon separation. In particular, there are sometimes not sufficient financial resources to immediately fund a second property to enable both parties to live separately.

Some couples will wish to move matters forward to resolve finances and create certainty in their situation. Others will wish to engage in a period of separation in the first instance or use the time to try and reconcile or repair their relationships. How you go about things may depend on which category you fall into.

If you are going through a trial period of separation and are looking to reconcile

There are no particular rules for this and it will vary from couple to couple based on what you both need (as individuals and as a couple). However, here are some potential tips to assist with this:

  1. Try to give each other some space. If possible, make room in the property for each of you individually. There may be clear “common areas” such as the lounge and kitchen etc, but you may each wish to have your own space that you can go to in order to have some time to yourselves. If you have children, you may wish to try to agree times that you can each have to yourself whilst ensuring the children are cared for.
  2. Consider engaging with Relate or any other counselling service in order to discuss things. You may both wish to have some assistance with deciding how to move forward with your relationship. Given the current circumstances, many counselling providers are able to assist via telephone and webcam services. If engaging in counselling via a webcam or similar, you should ensure that any children or pets are appropriately cared for or occupied in order to reduce the risk of interruption or exposing children to adult conversations. You may take the view that big conversations either need to be tackled up front and dealt with proactively, or you may decide that the big conversations should wait until a later date. There is no right answer or one-size-fits all solution.
  3. Try to be accommodating to each other’s needs. This is a very stressful time for many. Some may find it very difficult to adapt to the COVID-19 “rules” or any period of self-isolation. The space you are having to share may be relatively small. You may each have very different approaches to dealing with things. You may find the proximity and prolonged time with your partner, pets and children has an impact on your usual tolerance threshold and patience. Things that would usually create minor irritation may escalate and it is important to take steps to try to avoid any unnecessary conflict.
  4. Ensure you look after yourselves. Make sure you look after your physical and mental wellbeing. This may involve support from friends and family, as well as input from any professionals, including your GP. Try to get fresh air and take exercise regularly, which will assist with your physical health and may give you time and space to clear your head.

If you are looking to separate

This is relevant if you are a cohabiting couple seeking to separate or if you are married (or in a civil partnership) and you wish to separate but do not wish to divorce immediately.

With unmarried couples, it is important to determine what jointly owned assets there are. This may include joint bank accounts or properties.

You may wish to dust off your cohabitation agreement or living together agreement (if you entered into one). In the absence of any agreement, it would depend on the circumstances if there are any claims available between cohabitees.

If you have children, you may wish to have discussions with your ex-partner to ascertain what arrangements you consider would be in the children’s best interests. If there are difficulties with this discussion, you may wish to seek legal advice or consider going to a mediator to see if you are able to resolve any source of conflict.

If you are in a married couple and you do not wish to proceed with a divorce, you may wish to consider whether a separation agreement would be beneficial. This can set out a number of agreements in respect of separation, finances (and potentially future divorce proceedings if these are necessary in due course). You may wish to seek legal advice, begin the process of financial disclosure and consider the short-term (and long-term) financial positions.

Separation with a view to divorce

In order to commence divorce proceedings (with can only be done after more than 12 months have passed from the date of marriage), you must show that your marriage has irretrievably broken down by establishing one of five facts. Two of these facts are based on periods of separation (either two years with the consent of your spouses to the divorce or five years).

Separation does not necessarily require you to be living in separate properties, but does require that you live separate lives. Some of the evidence relied on to show you are living separate lives (albeit under one roof) can be as follows:

  1. Preparing and eating dinner separately (i.e. not having communal meals);
  2. Separate sleeping arrangements;
  3. Carrying out individual household chores such as laundry and washing dishes separately.

This is not an exhaustive list and there are a number of facts that might indicate that you are “separated” for the purposes of divorce.

In the event that you do not meet the criteria to rely on the ground of separation or you do not wish to wait for a period of separation to pass before applying for a divorce, the other facts you could consider are the other party’s adultery or behaviour. Relying on these facts does not mean that the divorce needs to be contentious or defended. Lawyers who are members of Resolution are committed to trying to reduce animosity between parties and may be able to assist with the drafting of a petition to move the process forward without creating conflict. If your circumstances enable it, you may wish to have a discussion with your spouse about the grounds upon which a divorce could be applied for and who should be the petitioner.

Practical steps for living together whilst separated

Living together with a partner with a view to temporarily or permanently separating can be extremely difficult and with the additional stressors associated with COVID-19, there can be additional strain.

It may be helpful, regardless of the circumstances you fall into, to have a discussion with your partner or spouse (if this is possible) to discuss what a separation might look like and some “ground rules” in respect of the separation, communications between you and how you might share the property.

You may wish to seek legal advice on your separation or divorce. If you are having a virtual or telephone appointment in the property, you should ensure that you can speak privately without being overheard or interrupted. If this is not possible in your home, you may wish to consider an alternative venue or if necessary request an appointment at a solicitor’s office.

Should you have any queries on this or any other family law matter, please contact a member of the Family team and we will arrange an initial appointment with you to discuss your circumstances, the options available to you and advise as to the process, timings and costs.

This blog was co-written by Sharlott Yum, Solicitor and Danielle Taylor, Solicitor.