Blog
Attorney Milena Nowicka
When problems arise in your marriage, it does not necessarily mean that you need to divorce. Sometimes, although the ties that bind you together have come to an end, you still see a chance to salvage your relationship. If this is the case, consider a legal separation. In this way, you will still remain husband and wife, but at the same time you will be able to adequately protect your interests on a legal basis.
A separation can be said to exist when there is a complete breakdown of cohabitation between you and your spouse. This means that physical, economic and spiritual ties between you will cease. This does not have to be permanent, as in the case of divorce.
However, the mere fact that these ties have ended does not mean that your life will change in any legal way. Even if you decide to live apart and break off contact, from a legal point of view you will not be any different from a happily married couple. Only a legal separation, i.e. one ordered by a court, will make a difference.
The effects of a legal separation are very similar to those of a divorce. This means, first and foremost, that when a separation is pronounced:
As already mentioned, the effects of legal separation are very similar to those of divorce. For this reason, many people wonder whether there is any point in declaring a separation when one can opt for a divorce instead.
However, there is a reason why the legislation provides for both. Indeed, there are important differences between separation and divorce. First of all, legal separation does not result in the dissolution of your marriage. You still remain husband and wife. Therefore, you cannot enter into new marriages.
Furthermore, although a legal separation requires the breakdown of your marriage to be complete, it definitely does not have to be permanent. There is therefore a chance that, in time, you will attempt to salvage your marriage and lift the separation. The whole process is thus reversible. Of course, it may equally well be that your relationship cannot be saved. However, nothing prevents you from deciding to divorce at a later stage.
In short, therefore, it can be said that if you see no prospect of your marriage being salvaged, divorce may indeed be the only option. On the other hand, in case you and your spouse want to give each other time to think about it, separation would be the best option.
There is no limit to how long you can remain separated. In practice, there is no shortage of couples who procrastinate for years on the decision to get a divorce or to try to salvage their marriage. Some even start new families in the meantime, while seeing no need to dissolve their existing marriage. Theoretically, therefore, once a separation has been pronounced, you can continue in this state even for the rest of your life.
However, as far as the length of the proceedings themselves from the moment the petition or application is filed to the moment the judgment is handed down is concerned, there are a number of issues that will really matter. The first of these concerns the procedure for deciding on the separation. There are two options to choose from - litigation and non-litigation. With the latter, you will be able to resolve your legal situation even at the first hearing. With the procedural procedure, however, the case is somewhat more complicated. Usually, at least several hearings will be necessary. You will have to wait several months for each of these.
A lot also depends on how many issues you leave to the court. If you have minor children together, the proceedings will certainly be longer. The court will not only decide on the separation itself. It will also have to decide on parental responsibility and maintenance.
The more contentious issues arise, the longer the entire separation case will also take. This is because different positions mean longer evidence proceedings and therefore more hearings to be held. So if you want a court decision as soon as possible, it is best that you try to reach an agreement outside the courtroom and work out a common position on the issues.
When it comes to choosing the mode of adjudication of separation, the rule is simple: the non-procedural mode is available to those couples who have no minor children in common and file a consensual application for separation. In other situations, you are left with nothing but the procedural mode.
This involves the existence of a dispute. In this case, therefore, one of you will be the plaintiff and the other will be the defendant. The separation is therefore pronounced on the basis of a writ of summons filed with the appropriate district court.
Such a letter should contain the details of both of you - names, PESEL numbers and current residential addresses. In the statement of claim, you should also indicate certain demands in connection with the declaration of separation. You may therefore request, among other things, the division of property, an order for maintenance for your children or contact arrangements.
An important element of the statement of claim will also be the grounds. As already mentioned, the court will pronounce a separation if it considers that the marriage has broken down completely between the spouses. This part of the pleading should therefore contain arguments to prove that this has indeed happened. This is also the right place to substantiate your other claims - e.g. the amount of alimony or child custody.
However, filing a lawsuit is not the only solution. You can equally well demand separation by mutual consent. In this case, there is an alternative to litigation - the non-litigation procedure.
In this situation, you do not file a lawsuit, but a consensual request. There is also no plaintiff and defendant, and the court does not pass a judgment, but an order. The whole procedure takes a lot less time, as there are no disputed positions, no adjudication of guilt or the need to regulate the situation of your joint minor children. However, the court may still decide on additional issues, such as, for example, the division of joint property or the use of joint accommodation.
Although you and your spouse are still married after the separation has been pronounced, your situation in terms of inheritance changes.
Until now, the death of one of you meant that the surviving spouse and descendants (children, grandchildren) inherited. If there were no descendants, the spouse and parents were entitled to inherit.
However, once legal separation has been declared, the case is different. In terms of inheritance, the effects are the same as in the case of divorce. This means that you will not inherit from your spouse or he or she from you. Of course, you must bear in mind that this rule only applies to inheritance by law. However, it is still possible to receive an inheritance under a will. So if your spouse has previously made a last will and called you to inherit, a declaration of separation will not change anything in this context. You will still be entitled to the estate of the deceased under the will.
Legal separation also means that there will be a separation of property. This will happen as soon as the court decision becomes final. From now on, the assets you acquire (e.g. the money you earn or the property you buy) will be yours alone.
However, there is still the question of the distribution of assets that have hitherto belonged to both you and your spouse. We are talking here about, among other things, money accumulated in a joint account or the flat you have purchased.
You can carry out the division of your joint assets within the framework of the separation proceedings themselves. However, this is all on condition that it does not lead to the proceedings being unduly protracted. If, on the other hand, this is not possible or you cannot agree on how to divide your assets, you will have to deal with this issue in separate proceedings.
In most cases, you will not be interested in a physical division of your assets, nor will you be interested in a civil division, i.e. selling your possessions and dividing the money. Most often, the third option will prove to be the most attractive to you. The division is then carried out in such a way that individual items are awarded to you or your spouse with the obligation to repay the other party.
If you have children together, the court will not only rule in the judgment on the exercise of parental authority and contact with the children. As parents, you also have a duty to pay maintenance costs. This means that it will be up to the court to decide how much each of you is to perform this duty. In simpler terms, the court will regulate who is to pay child maintenance and in what amount.
The most common scenario is that the child lives permanently with one of you, so the other parent is necessarily less involved in the child's upbringing. Consequently, he or she is obliged to pay maintenance. The amount of alimony is determined by taking into account, on the one hand, the needs of the child and the costs of raising the child, and on the other hand, the financial capacity of the parent obliged to pay alimony.
The second issue is spousal maintenance. Their amount and the rules for paying them look different depending on which of you is responsible for the breakdown of the marital relationship. If the court finds that neither of you is at fault or that you both contributed to it, you can only claim alimony if you have fallen into privation. This refers to a state in which you are unable to meet your basic needs.
However, the situation is completely different if the court finds that your spouse is solely responsible for the breakdown of your marriage. In such a situation, you will be entitled to alimony based on the deterioration of your financial situation after the separation.
In many cases, at the time of the decision on separation, you share a flat in which the two of you have hitherto resided. For this reason, the court will also have to decide how you are to use the property.
In making its decision, the court will take into account, in particular, the needs of the children and the spouse who is to exercise parental responsibility. It is possible that you will continue to live together despite the separation. The court is also entitled to allocate housing to just one of you, provided that the other spouse agrees to move out without the provision of a replacement or substitute accommodation.
In exceptional circumstances, i.e. if one of you behaves in a grossly reprehensible manner and does not allow you to live together, the court can also order eviction on the application of the other party.
Although separation is chosen by those couples who still see a chance to improve their relationship, it does not always work out. It may happen that you and your spouse come to the conclusion over time that divorce is the best solution after all.
However, there is no such thing as an automatic transition of separation into divorce. There is no provision that states, for example, that you will cease to be husband and wife once certain conditions are met. For this to happen, it will always be necessary to file for divorce. Either of you can do this at any time during the separation. Of course, you have to bear in mind that the court will only pronounce a divorce once the condition stipulated by the law has been met - your relationship breakdown must not only be complete, but also permanent.
It is also worth mentioning that you do not have to decide first on separation and only then on divorce. If you see no chance of saving your relationship, you have the right to demand the dissolution of marriage right away. What is more, if one of you applies for separation and the other for divorce, then - as long as the latter demand is justified - it is the divorce that the court will rule on.
Matrimonial separation - what is it?
A marital separation occurs when physical, spiritual and economic ties cease between you and your spouse. This breakdown of cohabitation must be complete, but not necessarily permanent. However, for a separation to have any legal effect, it must be ordered by a court.
How does marital separation differ from divorce?
In the case of separation, you and your spouse remain husband and wife. This means that you cannot enter into new marriages. Separation is also a reversible process. So if you make a successful attempt to save your marriage, the separation can be lifted.
How do I file a lawsuit for separation?
The application for separation is filed with the district court with jurisdiction over your last place of cohabitation. The letter should contain the personal details of each of you, specific demands, as well as the reasons for the position of the claimant.
