What is de facto separation?

The de facto separation is that rupture in a couple or marriage, without being recognized by a legal entity or through a process of legal divorce or voluntary jurisdiction.

It is thena voluntary separation of one of both parties of the relationship, it is not considered an abrupt abandonment, but it is when someone decides to separate immediately from themarriage bond. The marital home may be involved, which one of both parties decides to leave without prior procedure.

This occurs because ofthe fear of commitment, the easier decision tofree oneself from responsibilitiesand prevent debts or assets that are divided during the divorce process. Despite this, marriage can remain in force in the eyes of the law.

Important: A law firm mentions an important rationale: “The spousesmust have the option of extinguishing the legal bondthat unites them, but which, in fact, has already disintegrated”. (1)

Characteristics of de facto separation

A couple involved in a de facto separation is easy to recognize, with the times, it is a very common practice, unmoral and unfortunately very sad. The main features are as follows:

It constitutes the interruption of coexistence

De facto separationis a very unexpected interruptionof cohabitation and the construction of a relationship, both in marriage and in concubinage relationships.

Note: In fact, in this practicecan be considered the abandonmentsthat occur during an unwanted pregnancy, by one in the couple, although it is no longer considered de facto separation.

The marriage bond is not legally severed

It is anunorthodox process and is not considered legal, when talking about marriage there are acts that conform and recognize the union of two people, however, in a de facto separation, one of the two can escape from the relationship by breaking the marriage bond without legal bases.

It is the step prior to divorce

It can be considered as asafe passage for the divorce process, although certainly, the de facto separation is from a couple that should no longer be united due to the little affection, commitment and love that exists in it.

It can be done before 3 months of marriage

This type of separationis unexpected and without exact time, it can occur in a specific period, see 3 months thata marriage has just begun, slowing down the time to stabilize the couple, forge a life together and strengthen love.

To highlight: This happens because many times the law does not allow the separation of the marriage until at least 3 years have passed.

It can be by mutual agreement or on demand

The de facto separationis done through an agreement between both parties, mainly by those who wish to cut the marital relationship orcan be done on demand, not one legally, but as a forced action between the couple to cut the relationship immediately, without resorting to divorce or legal process.

It cannot be done in case of having minor children

De facto separationcannot be carried out if there are, within the marriage, children or minor children who are not emancipated. Since it is not part of this type of separation, really if you want to separate having minor children, divorce is urgent and mandatory.

Note: In addition, these unemancipated children are under the protection of parental authority, strictly by law.

May have legal and economic effects

The legal effects may vary, because it is not a legal or recognized separation, the spouses stillhave their established duties, such as: living together, sharing mutual responsibilities and in addition to privatized assets, which would be one of thelegal and economic effectsof a de factoseparation.

If it is not well digested by the spouses, there may be aggressions or attacksthat will be punished and recognized by the penal code depending on the State in which it occurs, this is an uncommon and negative effect.

Effects of de facto separation

To complement, there are other noticeable effectsduring de facto separation, which can even complicate the situation a lot.

Economic conflicts of interest

As the goods are privatized, conflicts can be generated by economic interests, whether it is the distribution of money, housing or other mostly material goods, which a pre-established marriage has.

Note: A legal citation mentions that, part of the effectsof this separation “They can have legal effects on issues such as the right to inherit from the other spouse. It will also happen with the assets and debts that are generated during that separation.” (2)

Impossibility of applying for compensatory pensions

Unlike a divorce, during a de facto separationyou cannot claim compensatory pensions. Which is only allowed according to the civil code of each country, in case of divorces or legal breakdowns, this because the law allows and recognizes it.

So if a couple, after the de facto separation, is in a serious economic situation, they will not access a compensatory pension.

Impossibility of inheriting from one of the spouses

Each of the spousesloses the right to inherit, either housing or some specific property, because no heir is legally recognized. And since separation is not recognized in the law, the marriage continues to stand and therefore, all material goods and housing can continue to belong to both people within the relationship.

Lawsuits for family abandonment may arise

Although de facto separation and family abandonment are different terms,lawsuits can be generated by putting as the main cause “family abandonment”, either because it was not made by prior agreement or also by the decision to recover goods, services or custody of the children, as well as seek compensation for the act.

Note: A law firm explains “Family or voluntary abandonment implies the flight of one of the spouses after a unilateral and untimely decision, abstracting from marital duties”. (3)

You cannot claim a widow’s pension

Again, outside the legal framework, the de facto separation couplecannot access a widow’s pension, in the event of the death of one of the spouses.

Certainly anddue to the civil code of several countries, some requirements must be met to obtain this type of pension, mostly if a marriage is not accredited.

As for example, an article of the Senate of the Republic of Mexico is quoted as follows“Article 130. The widow’s pension shall be entitled to a widow’s pension if she was the wife of the insured person or pensioner due to disability.” (4)

Note: The widow’s pension is strict even for de facto couples, if they do not meet the requirements that are requested, they are denied.


How to avoid the effects of de facto separation?

If it is desired in any case, to prevent negative effects of de facto separation, the following legal and legal guidelines must be taken:

Notarize separation

This isan excellent legal means to prevent the effects of de facto separation and isthe viable option for divorce in a wide network of doubts, since it involves a mutual prior agreement between both spouses, wherethey can go to a notary, together with a specific lawyer and act duly to the divorce process, which will be drafted.

Filing for divorce

After going to the notary, the divorce will be drafted with the appropriate parametersand will be approved as long as it is done with prior agreement (which will be evaluated), while the assets or liquidations of regime are divided according to each part, it can be done through a regulatory agreement, a very frequent document in divorces.

Note: Upon completion of this, the divorce certificate is sent to the Civil Registry or a supreme court if permitted (depending on the country or state you are in).


Key Findings

  • De facto separation occurs as abreakdown of a marital relationship, without interrupting their respective duties and without voluntary jurisdiction.
  • It can be done byprior agreement or voluntarily.
  • De facto separation is very different fromvoluntary or family abandonment.
  • This type of separationdoes not mean a breakdownof the marriage, at least not legally.
  • If you want to avoid the negative effects of de facto separation, you mustgo to a divorce process, legally and safely.


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