Legal Separation vs Divorce

Legal Separation Versus Divorce: What Are Your Options?

Divorce is not the only option when a marriage breaks down.

Some couples may choose to separate for a trial period to determine if reconciliation is possible. Some may not be ready to take the full plunge of divorce proceedings and others may have religious or moral reasons for not wanting to get divorced.

In these situations, legal separation may be a viable alternative to divorce. Seen by some as a half-way house, legal separation offers couples the option to separate their lives and finances while still technically remaining married.

What is legal separation?

A legal separation is an arrangement where, instead of divorcing, a married couple lives apart while remaining legally married.

It can be achieved in two ways:

Separation Agreement

A Separation Agreement is an arrangement between you and your spouse setting out what they intend to happen to their money, property as well as other practical issues. For example, your Separation Agreement might specify:

• How bank accounts, savings, investments, properties, vehicles and debts will be divided.
• Whether one person will pay spousal maintenance to the other, and for how long.
• Children arrangements such as residency, visitation and child support.
• Who will remain in the family home and how shared expenses like the mortgage or rent will be handled.

A Separation Agreement does not involve any court proceedings and technically isn’t legally binding. However, it may be difficult for you to argue that you should not be held to its terms if you had full financial disclosure and independent legal advice.

That’s why it’s important that your Separation Agreement is properly written by a family solicitor.

A carefully crafted Separation Agreement can also be turned into a Consent Order for your divorce settlement if you later decide to end the marriage.

Judicial Separation

In rare cases, a couple might opt for a judicial separation. This is a more formal process where you obtain a Decree of Judicial Separation from the Family Court. It can take several months to get a Judicial Separation and the process involves making an application and filing paperwork with the Court.

Unlike with a Separation Agreement, the Court has the power to make financial remedy orders regarding the division of money and property, including:

• Pension Sharing Order
• Periodical Payments Order
• Lump Sum Order
• Property Adjustment Order
• Maintenance Pending Suit

A Judicial Separation may be a more appropriate way to legally separate if the parties wish to preserve pension rights or other benefits that only a spouse can access, or when there are religious or cultural reasons why a couple does not wish to divorce.

What is the difference between legal separation and divorce?

With both a Separation Agreement and a Judicial Separation, both people remain married to each other and are not free to remarry.

A divorce permanently ends the marriage. Once the divorce Final Order is granted, both parties are legally single and can marry someone else.

What are the benefits of staying married but separated?

There may be several reasons why a couple chooses to pursue legal separation instead of divorce, including:

• Religious or moral objections to divorce.
• Not meeting the legal requirements for divorce, for example, the couple has been married for less than one year.
• Wanting to maintain social security, pension or insurance benefits that are only available to married couples.
• Wanting to remain your spouse’s next of kin for medical or legal decisions.
• Financial concerns, such as not being able to afford a divorce at the current time.
• Hoping to reconcile the marriage in the future but needing some space and time apart first.

When might divorce be the better option?

While legal separation can be a viable option for some couples, there are certain situations where divorce may be the better choice. These include:

• When one or both parties want to remarry.
• When one party has no intention of reconciling or needs to cut ties for their emotional well being.
• If there is a need for a clean break with no financial ties between you. This is an important consideration, especially if there are concerns about one party incurring future debts that could impact the other.
• When there are concerns about domestic violence, as divorce offers more protection in terms of obtaining restraining orders and custody arrangements.

Separated but not divorced inheritance – don’t forget to make a will

Divorce effectively removes your former spouse from your Will. The Will stays valid, but your ex is treated as if they were dead.

The situation is different with a legal separation.

Subject to any contrary provision in the Will, a separation Agreement has no effect on a Will so your spouse could still inherit under your Will, no matter how long you have been apart. If you die without making a Will, the rules of intestacy state that your spouse is first in line to inherit.

This may not suit you, and you should think about making an up-to-date Will providing for your changed circumstances.

The experts at Osbornes Law can help you create a Will that reflects your new relationship status and takes into account any potential claims from your estranged partner.

• Also see our blog post: Do I Have to Share My Inheritance With My Spouse?

How we help with legal separation

Navigating the end of a relationship is a complex process. Whether you choose legal separation or divorce, the decision should be made carefully with the guidance of an expert divorce lawyer to ensure it is right for you, your family, and your long-term well-being.

Seeking specialist advice at an early stage is highly recommended, and can ensure that you separate your lives the right way without unintended consequences in the future.

If you would like to have a confidential discussion about divorce or separation with a divorce lawyer

• Call 020 4502 7043, or
• Complete an online enquiry form.