When a marriage or civil partnership isn’t working, couples often face a big decision: should they get a divorce? But there are other options available, like a legal separation. While both options allow spouses to create legal distance from each other, they have different effects on finances, responsibilities, and the future of the relationship.
In this article, we’ll explain what legal separation and divorce mean, how they differ, and why people choose one over the other. We’ll also go over the legal steps involved in each and help you decide which option might be best for you.
Dealing with divorce or a family legal issue? Our experienced team can provide the help and support you need. Explore our Divorce and Family Law services to learn more about how BGW can help.
What do we mean by a legal separation?
A legal separation is when a married couple chooses to live apart while remaining legally married. It’s an arrangement that sets out responsibilities such as finances, child arrangements, and property division, but it does not end the marriage.
There are two main types of separation:
Separation agreement
This is a written document that outlines how a couple plans to divide their assets and manage responsibilities when they separate. It can cover things like:
- How savings, bank accounts, investments, and debts will be divided.
- Child custody, schedules for when the child will see each parent, and child support payments.
- Whether one person will pay financial support (maintenance) to the other.
- Who stays in the family home, and how rent or mortgage payments will be covered.
This type of agreement doesn’t require going to court and isn’t legally binding on its own. However, if both parties have had independent legal advice and fully disclosed their financial situation, it can be difficult to challenge.
Although it’s not legally binding at first, a Separation Agreement can be turned into a Financial Order in a divorce, making it legally enforceable when the marriage officially ends.
Judicial separation
A Judicial Separation is a formal legal process where a court recognises that a couple is separated, but they remain legally married. The court can make decisions about money, property, and financial support, just like in a divorce, but without officially ending the marriage.
With the introduction of no-fault divorce laws, applying for a judicial separation no longer requires proving one of the five grounds for divorce. You simply state that you wish to seek a judicial separation. After the process, you will receive a Decree of Judicial Separation, which is different from a Decree Absolute (the final order in a divorce).
Some couples choose this option for religious beliefs, personal reasons, or to keep certain legal benefits of marriage, such as pension rights. However, it is less common than a Separation Agreement because it takes longer and involves a formal legal process.
What’s the difference between legal separation and divorce?
While both legal separation and divorce allow couples to live apart and divide their assets, there are some key differences:
A divorce officially ends a marriage, after which both parties can choose to remarry. Whereas with a legal separation, the marriage remains legal, but the couple decide to live apart from each other.
In both cases, couples need to figure out or let the court decide how to divide their money, property, and responsibilities. In a divorce, these decisions are final and enforceable by law.
In a legal separation, financial arrangements can be made informally with a Separation Agreement or formally through a Judicial Separation. This allows them to keep certain marriage benefits, like pension rights, but the couple still remain married.
Another key difference is that once a divorce is final, both parties are free to remarry. With a legal separation, however, they remain married and cannot remarry unless they later decide to divorce.
To sum up, divorce ends the marriage, while legal separation allows for a formal separation without dissolving the legal ties of marriage.
Why do people choose to get legally separated?
Couples often choose to get legally separated for a number of reasons, including personal, financial, or religious reasons.
Some religions disapprove of divorce, so couples may opt for legal separation to honor their religious beliefs. It allows them to live apart without ending the marriage, which may align better with their faith.
There are some couples who prefer to separate because it allows them to keep certain benefits of being married, such as shared insurance or pension rights. It can also give them the time and space they need to consider divorce proceedings or reconcile.
As divorce can impact children, some couples choose legal separation to create a more stable environment. They might want to maintain the legal ties of marriage while sorting out living arrangements, child custody, and other matters before deciding if divorce is the best option.
Is it best to get a legal separation or divorce?
The route you take will ultimately depend on your own situation and what you hope to achieve in the long term. Before making a decision, there are a number of aspects to consider.
If you’re unsure about ending your marriage permanently, legal separation can give you time to reflect and work through any issues. It allows for the possibility to reconcile or, if things don’t improve, divorce later on. However, if you’re certain that the relationship is over, divorce may be the better option.
A legal separation allows you to divide finances and set clear boundaries while still remaining married, which can be beneficial in some cases. Divorce, on the other hand, permanently separates your finances but can be more expensive and time-consuming due to the legal process involved.
The time and cost of each option can also vary. Divorces typically take longer and involve more legal steps because they officially dissolve a marriage. Legal separation might be quicker and easier, depending on the situation and whether both partners can agree on terms.
Will I need a solicitor for a legal separation?
You are not legally required to have a solicitor to apply for a Judicial Separation, but getting professional advice can be extremely beneficial. The process involves completing and submitting legal forms, and while you can do this yourself, a solicitor can ensure that everything is done correctly, reducing the risk of delays or mistakes.
If you and your spouse need to divide assets, arrange financial support, or agree on child custody, a solicitor can help you draft a Separation Agreement. While this agreement is not legally binding, having it professionally written increases the chances of it being upheld in court if necessary.
Our team of solicitors can guide you through the legal separation process, help draft a Separation Agreement, and advise on matters like finances, property, and child custody. We aim to resolve matters amicably, allowing both parties to move forward with as little conflict as possible, especially important when children are involved.
Please contact any of our offices or send us a message using the contact form on the right of this page and we will get back to you as soon as possible. For your convenience, we offer meetings in any of our three offices or virtual meetings online, to save on travel time.