A legal separation can be taken very literally; one lives separately, therefore table and bed are no longer shared. This form of separation is nowadays often chosen because of religious conviction. Another important consideration in opting for a legal separation is that reconciliation is much simpler. According to the law, in cases of legal separation you are still married but you no longer cohabit. You can therefore cohabit with any new partner and start to build a new life together, but you cannot marry him or her or enter into a registered partnership because bigamy is prohibited by law. A legal separation is only possible in case of a marriage and therefore not in case of a registered partnership.
When is there a legal separation?
A common misunderstanding is that a legal separation has come into existence when the spouses have decided to separate and no longer live at a joint address. However, an application for a legal separation must be submitted to the court. As soon as the court has pronounced the legal separation between the spouses the judgement must be registered with the matrimonial property register. The community of property must in that event be divided. Both parties therefore retain their personal assets and income after the legal separation. The statutory inheritance also lapses. If you still wish to keep this, it must be expressly arranged in a last will and testament. The liability for maintenance in the form of Spousal alimony remains in existence during the legal separation, along with the accrual of the surviving dependant’s pension. If necessary, the court can determine what maintenance contribution one spouse must pay to the other during the legal separation. The legal separation proceedings are virtually the same as divorce proceedings. The court will grant the legal separation if the court is convinced that the relationship has irretrievably broken down. If there are minor children involved in the separation, a parenting plan must be drawn up. The reaching of agreements regarding the division of the matrimonial community of property, maintenance, pension and the children must not be underestimated. It is important that careful attention is paid to this. It is possible to live the rest of your life in legal separation. If one does wish to terminate a legal separation, this can be done in two ways. The marriage can be terminated at a later date. This must take place within three years with the concurrence of both partners. After three years, the application can only be submitted by one of the partners to the court.
Reconciliation after legal separation
It may be that the partners wish to reconcile. Reconciliation can take place simply by having a unanimous (agreed) application registered for this purpose in the matrimonial property register. The legal separation will be ended through this. Reconciliation causes all consequences of the marriage to be restored as if no legal separation has taken place. VAN LEEUWEN LAW FIRM would like to assist you with the submission of an application for legal separation, the drawing up of a parenting plan, the assessment of the maintenance obligation and we will ensure that the correct procedures are followed.
