Separation - Litigious or Consensual

Once a relationship ends parties will move further away from each other and slowly split apart. Separation is not a rigid process but a gradual one that materializes once parties lose their affection towards each other and feel no desire to support and maintain the other. Although relationships often pass through rocky periods, parties are separated when there is no prospect that they will overcome these difficulties and reunite.

Separation can be either ‘de facto’ or ‘de jure’. Parties are said to be de facto separated when the relationship has ended but they have not yet formalised the separation into an agreement or through a judgment. Conversely, when parties have formalised their separation, they are said to be de jure separated.

In most cases of separation, one of the spouses would have left the matrimonial home and would be unwilling to return, however, there are cases where parties are separated but are still be living under the same roof. Indeed parties may remain de facto separated for years before arriving at a consensual or court separation.

A de jure separation can either be consensual or litigious. Separation is said to be consensual when parties arrive at an agreement before a mediator and without engaging into litigation before the Family Court. Conversely, a separation is litigious when parties are not able to solve one or more issues in their relationship and ask the Family Court to decide on one or more matters concerning their relationship: e.g. decide on child custody rights.

Consensual Separation
Consensual separation takes place with the assistance of mediators (see mediation process). If during the mediation process parties fail to agree on one or more family related issue they will have to solve the matter by applying to the Family Court for a decision on the matter. The separation process will then turn into a litigious one.

Court (Litigious) Separation
Parties engage in court separation because they do not come to terms on basic family issues during the mediation phase. In such case, the court will decide on issues such as child custody, access, maintenance due, etc... that are not agreed upon. This would come after the court would give both parties a chance to bring forward their case and tell the court why a decision should be given in their favour.

In view that the court process involves several applications and litigation before the court, this process is usually costlier that consensual separation.

Annulment and Divorce
Following or during the process of separation one or both of the parties may seek to create a new family. In order to remarry parties would have to obtain an annulment or a divorce. Issues relating to separation will inevitably crop up in annulment and divorce.