Divorce vs separation? How do they work?

Deciding you can no longer be with someone can happen for any number of reasons, and a split can be a very difficult, emotional process to go through. Choosing whether to formally separate or to go through with a divorce, depends entirely on your specific situation and your family’s needs and beliefs

Why chose a separation?

A legal separation allows you to separate, without divorcing or ending a civil partnership. You may want a legal separation if you have religious beliefs which prevent divorce in certain circumstances (such as if the marriage is Nikah , or a strict Catholic marriage), you’ve been in a marriage or civil partnership for less than a year, or you simply want time and space to work out if you want to continue with your marriage/civil partnership.

How similar are divorce and separation?

Divorce and legal separation are similar in several ways. You can live apart from your spouse and the Court can exercise its power to divide financial assets. The Court can only make orders relating to pension sharing within ancillary proceedings to divorce.

If your spouse is named as a beneficiary in your Will, the Will is no longer valid upon divorce, unless you decide to make a new Will specifically naming them as a beneficiary.

What are the differences between divorce and separation?

The main differences between divorce and separation are:

• once you are divorced you can remarry, but you can’t after a legal separation;
• at the culmination of divorce proceedings, your marriage is legally over. A judicial separation means that you remain married;
• in England and Wales, you have to wait until you’ve been married for at least a year to be able to get a divorce, whereas you can apply for judicial separation at any time; and
• the Court can share a pension during ancillary proceedings to divorce but cannot exercise these powers for judicial separation..

Is a ‘judicial separation’ the same as a ‘separation agreement’?

In short, no. A judicial separation requires an application to be made to the Court, while a separation agreement is something you and your spouse can agree on informally between you.

Using a separation agreement as a ‘halfway house’

If you haven’t decided whether or not you want to end your marriage, a separation agreement is a written agreement that can include matters like what happens to your home and who lives there, child arrangements, who pays any mortgage or rent, who is responsible for any debts, how your assets will be divided and others – all without involving the Court for clarification in future arrangements, and avoiding conflict.

Crucially, it’s important to bear in mind that, if you later do need the Court to adjudicate on secondary proceedings, whilst the Court will give due consideration to any separation agreement drawn up, in the event of a dispute the Court has the power and discretion to overrule the agreement if felt unreasonable in the specific, current circumstances.

Help from Family Law specialists

Cunningtons Family Law solicitors have dealt with many cases of marital breakdown, as well as with cases where differences have been resolved – without the need for divorce courts.

Feel free to contact our teams in Braintree, Chelmsford, or Wickford for a confidential discussion.