Legal separation in the UK, also called ‘judicial separation’, allows a couple to separate without the need to apply for divorce or dissolution of a civil partnership. Unlike the marriage separation rules for divorce, with legal separation, you remain married but live apart from each other. Legal separation is often used if couples cannot divorce for religious reasons, have been married or in a civil partnership for less than a year, or want to separate before making the decision to apply for divorce or dissolution.

Benefits of staying married but separated

There are several advantages of a legal separation in the UK, including tax benefits, pension entitlement and shared mortgage responsibility.

Tax Benefits – Some tax credits, such as the Marriage Allowance, may still be available if two people are married but legally separated. This allows a portion of one spouse’s personal allowance to be transferred to the other, potentially reducing their overall tax bill.
Pensions – Remaining married but legally separated may entitle an individual to claim a state pension based on the National Insurance contributions of their partner. In addition, in some cases, separated individuals may still be entitled to a share of each other’s private pension.
Shared Mortgage – Individuals who are legally separated may be able to keep their shared mortgage arrangement with their lender. It is important to remember that legal separation does not automatically alter mortgage responsibilities. Both spouses will still be responsible for mortgage payments until a formal agreement is reached.

Disadvantages of legal separation in the UK

Legal separation in the UK also has several disadvantages including the financial uncertainty for both parties, potential inheritance disputes and the inability to remarry.

Financial uncertainty for both parties – Although legally separated couples can maintain separate financial lives, they remain legally tied to one another. This makes it difficult to achieve a clean break and move on to a new life.
Inheritance rights – Being legally separated but still married can make the handling of inheritance in the event of the death of one person more complex and open to disputes.
Inability to remarry – Those who are legally separated cannot remarry. This limitation on personal life choices can be emotionally and socially challenging. To remarry, couples must first divorce.

How to get a legal separation in the UK

If you are considering a legal separation, it is important to seek the guidance and legal expertise of a family law solicitor who can guide you through the process and explain the legal and financial implications. The main steps involved in a legal separation are as follows:

Draft a separation agreement

A separation agreement (also known as a deed of separation) is an agreement between separating couples setting out how their property and other assets should be handled in the event of a divorce or dissolution in the future. This is not mandatory, but it can provide greater certainty regarding what will happen in the future if the marriage or civil partnership is formally ended and avoids the potential for lengthy and costly disputes.

It is important to bear in mind that separation agreements are not legally binding and can be difficult to enforce. That said, courts will normally uphold them if they are drawn up properly and have been fairly negotiated.

It is also possible to apply for a legally binding alternative to a separation agreement, such as a consent order for finances and a child arrangement order. If you are unsure of the type of document you need, speak to our family lawyers for separation legal advice.

Applying for legal separation

You can apply for a judicial separation either on your own or as a joint application. The first step to applying for legal separation is to complete Form D8S (‘Apply for a judicial separation’).¹ Once completed, 3 copies should be sent to:

HMCTS Divorce and Dissolution service
PO Box 13226
Harlow
CM20 9UG

You will also need to pay a court fee of £365 and provide your marriage or civil partnership certificate (and a translation if needed).

Reference

¹ GOV.UK: Form D8S