Written by Zinita Lottering,
25 January 2024
Is It Better to Separate or Divorce?
Before you decide to dissolve your marriage, you might want to ask yourself the following questions:
- Are you financially and emotionally ready to get divorced?
- Is it your intention to divorce your spouse, or do you hope that bringing up the topic will change your current circumstances?
- Are you ready for all the consequences of divorce?
If you answered no to any of these questions, you might want to consider separation instead. Where divorce dissolves the lawful relationship between spouses or partners, separation allows for time apart while the marriage relationship continues, allowing time to plan for the road ahead or work on the relationship.
What is a separation?
Separation allows spouses or partners to live separately without ending their existing marital relationship. Separation is considered when the spouses or partners hope to resolve the troubles they are experiencing in their relationship and need some time apart or when religious, cultural or ethical values don’t make provision for the option of divorce. Separation can also be considered if a spouse(s) or partner(s) don’t have the financial means to proceed with a divorce but are working towards it.
During separation, the spouses or partners remain married in the eyes of the law, and the marital regime applicable to the marriage remains intact. Therefore, the spouses or partners will remain responsible for debt and other obligations towards the other. Separation affords spouses or partners time apart to consider what they want. Spouses or partners get to experience day-to-day life without each other, and parties can reconcile and continue with the existing marriage without getting remarried.
What is the difference between separation and divorce?
Where separation affords spouses and partners time apart without ending the lawful marriage between them, divorce ends the marriage relationship in the eyes of the law. A Divorce Order will regulate the responsibilities towards one another, if any. If a couple gets divorced, some insurance and medical aid benefits might disappear, and the parties’ assets and liabilities are divided between them.
What Needs to be Proven for a Divorce Order to be Granted?
For a Divorce Order to be granted, the spouse or partner needs to prove that the marriage has irretrievably broken down to the point where there is no reasonable prospect of reconciliation or that one spouse is diagnosed with a serious mental illness or has been continuously unconscious for a substantial period of time. To prove the irretrievable breakdown of the marriage, the following is taken into account:
- love loss between the spouses or partners;
- whether or not they are living together at the time of the issuing of the summons;
- abusive behaviour;
- adultery;
- habitual criminality; and
- addiction.
What is a separation agreement?
When spouses or partners decide to separate, entering into a separation agreement is advisable, as this agreement regulates the relationship and responsibilities of the spouses or partners. A separation agreement is a private contract and should be drafted with the conditions for a contract to form being met; in other words, this agreement should be entered into freely and voluntarily, and both parties should understand the consequences of signing it.
What are the Advantages of a Separation Agreement?
Separation agreements have a multitude of benefits, including:
- it allows parties to live separately;
- it prevents arguments about responsibilities
- it keeps the relationship amicable; and
- should the parties decide to get divorced after some time, this agreement can form the basis for a settlement in the divorce proceedings.
This agreement is not a court order, and the parties will have to go through the regular divorce proceedings should they decide they want a clean break from each other. However, this agreement can form the basis for a settlement in the divorce proceedings.
What Should a Separation Agreement Contain?
A separation agreement requires full disclosure of both parties’ assets, liabilities, and responsibilities. This agreement should further indicate whether the agreement was entered into as a precursor to divorce or if the parties intend only to spend a certain amount of time apart. This agreement should make provision for what will happen in the event of circumstances changing, like the death of a party or a breach of the said agreement. Separation agreements may contain clauses relating to:
- parental rights and responsibilities,
- maintenance,
- immovable property,
- movable property,
- financial or business assets,
- joint debts,
- medical aid and
- insurance responsibilities.
Can Unmarried Couples Enter into a Separation Agreement?
Unmarried couples can also enter into a separation agreement in the event of a breakup. In fact, entering into a separation agreement is advisable for couples who have had a long relationship, as this may result in jointly-held assets, liabilities and, in some instances, minor children being born from the relationship.
It is important to note that common-law partners do not enjoy the same legal protection as married couples during a breakup. Entering into a separation agreement allows common-law partners to decide what is fair mutually and might avoid unnecessary arguments in the future as circumstances or needs change over time.
What should a Separation Agreement between Unmarried partners Contain?
A separation agreement between common-law partners will contain clauses similar to a married couple’s agreement. A Separation agreement should always be entered into freely and voluntarily, and both parties should understand the consequences of signing the agreement. The agreement may also contain clauses relating to:
- parental rights and responsibilities;
- maintenance, where applicable;
- financial responsibilities towards one another;
- the division of assets and jointly-owned assets;
- what will happen to agreements signed by both parties; and
- the repayment of debt.
Choose Separation Agreements for Making Informed Legal Decisions
Deciding to separate is never easy; however, couples who need alone time to consider the way forward in terms of their relationship may greatly benefit from a separation, especially if they have a solid separation agreement to eliminate any unnecessary conflict.
Contact one of Burger Huyser Attorneys’ separation agreement specialists for assistance with your separation agreement today! Our experienced team of family lawyers and divorce attorneys is ready to guide you through the legalities and considerations that should be taken into account for a separation agreement and the legal procedure to follow to make your separation agreement airtight!
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
