The main difference between legal separation and divorce in the UK is that divorce ends a marriage completely, while legal separation allows couples to live apart but remain legally married (i.e. for religious reasons or they don’t yet meet the criteria for divorce). With legal separation, because you are still married, you cannot remarry. In contrast, divorce legally ends a marriage and allows both parties to remarry once the Final Order has been granted as long as they have been married for at least 12 months. Legal separation and divorce also differ in terms of the legal process, the division of assets, and financial responsibilities – each of which will be discussed in more detail below.
It is important to note that informal separation and legal separation also have different meanings. Informal separation means that a married couple live apart without any legal process or court involvement. Legal separation is a formal legal arrangement that allows a couple to separate without divorcing or ending their civil partnership.
Legal separation vs divorce: legal process
The process of legal separation is similar to divorce, but unlike divorce, which requires couples to have been married for at least 12 months, there is no minimum period of marriage before applying for legal separation.
Another difference is that with legal separation, a couple can opt for a ‘Separation Agreement’, a more private arrangement which avoids the need for court proceedings, or a Judicial Separation. A Separation Agreement can be used, for example, to set out how assets will be divided and any child arrangements agreed upon as a result of the separation. A Judicial Separation is a much more formal process whereby a Decree of Judicial Separation will be issued by the Family Court that legally recognises the separation. With divorce, there is no choice regarding the legal process that must be followed (which typically takes a minimum of 6 – 7 months to complete). Judicial separation only requires a single court order (i.e. the Decree of Judicial Separation), while divorce requires two orders (i.e. the Conditional order and Final order).
If you are considering entering into a Separation Agreement, even though the process may be less formal, the contents of the document you sign can still have important legal implications for both parties. For this reason, it is always recommended that a Separation Agreement be drafted with the assistance of a divorce solicitor. Not only will they ask the necessary questions based on your background and future needs, but they will also ensure that the document meets your needs and is legally binding and valid. Furthermore, a well-drafted Separation Agreement can later be converted into a divorce financial settlement Consent Order if you decide to end the marriage.
Legal separation vs divorce: asset division
While it is possible to come to an arrangement regarding the division of your marital assets and property during the process of divorce or legal separation, there are some differences and limitations to be aware of. With legal separation, all marital assets remain jointly owned by both parties unless the Separation Agreement states otherwise, and both retain their rights to those assets (e.g. the family home).
For legal separation, the family courts can issue most types of Financial Orders, including Maintenance Orders and Property Adjustment Orders, however, they are not able to issue Pension Sharing or Clean Break Orders, which are only available in the event of formal legal divorce. As a result, legal separation can open parties to financial claims in the future. With divorce proceedings, the family courts have the full range of financial orders available, including pension sharing and clean break settlements.
Legal separation vs divorce: financial responsibilities
Legal separation also has an important implication for inheritance and Wills that does not apply to divorce. If separated but not divorced and a spouse dies, the other spouse will still be entitled to inherit from their estate. This is because legal separation does not have the effect of removing a spouse from a Will. Even if a Will does not exist, the other spouse would still inherit under the rules of intestacy. For this reason, it is important for anyone considering legal separation to update their Will to reflect their wishes. Divorce, on the other hand, means that a former spouse is no longer entitled to automatically receive an inheritance.
Should I choose legal separation or divorce in the UK?
Whether you should choose legal separation or divorce will depend on your personal circumstances (e.g. whether you have children and how long you have been married), as both approaches have benefits and disadvantages.
Pros and cons of staying married but separated
Legal separation vs divorce: advantages
- Available to those who have been married for less than 12 months
- Available to couples who cannot divorce for cultural or religious reasons
- Provides greater financial certainty compared to informal separation – e.g. how shared matrimonial assets will be divided in the event of a divorce and the amount of any spousal maintenance payments
- Allows couples time to consider their choice to separate before getting divorced
- May create a more stable environment for children
- Provides more time to come to an agreement on children and property
- Enables separation from an abusive partner within the first 12 months of marriage
Legal separation vs divorce: disadvantages
- Separation Agreements are not legally binding – they may be, however, considered by a family court to determine the intentions of the separating couple
- Financial uncertainty on the shared assets and debt
- Provides more time for a partner to hide assets
- May lead to a reduction in what you are entitled to in a future divorce settlement – especially if there is a change in the circumstances of your spouse
- Inability to remarry
- Does not allow couples to have a clean financial break, leaving them open to financial claims in the future.
Pros and cons of divorce
Divorce vs legal separation: advantages
- Allows separating parties to remarry
- Enables a clean financial break between separating parties
- The courts can issue a wider range of court orders, including pension attachment orders.
- Greater legal certainty
- Lessens the possibility of marital assets being hidden when reaching a divorce financial settlement
Divorce vs legal separation: disadvantages
- Applicants must wait until they have been married for at least 12 months
- Reduces the possibility of reconciliation – the no-fault divorce process does, however, include a 20-week ‘cooling-off’ period.
- Brings to an end the benefits of being married, including the right to stay in the marital home (home rights), shared ownership of marital property and the right of inheritance, etc.
