The Difference Between Legal Separation and Divorce

The breakdown of a marriage is of course most often followed by divorce proceedings. However, that does not have to be the case, even if there is no reconciliation.

Many separating couples choose not to dissolve the marriage, at least not immediately, for reasons that we will discuss in a moment.

But the lack of divorce proceedings does not of course mean that there are no matters to resolve. The couple will still need to sort out arrangements for any dependent children and for finances following the separation. And these arrangements will require legal steps to be taken, to ensure that they are properly recorded and, if necessary, enforceable. As we will see shortly, those legal steps may or may not be quite different from what would happen on a divorce.

Understanding the differences between a legal separation and a divorce is vital for any couple trying to decide what route to take.

In order to understand we first need to look at exactly what a divorce does, and what it entails.

What does a divorce do, and what does it entail?

It may seem odd to ask what a divorce does, but the answer of course reveals one of the fundamental differences between a divorce and a legal separation. And the answer is not quite as simple as many would expect.

A divorce obviously dissolves the marriage, thereby bringing to an end the legal relationship between the husband and the wife.

But what did that legal relationship actually mean?

There is in fact no ‘official’ list of the legal consequences of marriage, and many of the consequences exist more in legal theory than in practice. In practical terms, perhaps the most important consequences from a family law point of view are the right to maintenance and the right to occupy the matrimonial home.

Marriage gives each party the right to claim maintenance from the other. Divorce does not automatically bring that right to an end, but in most divorces there will be an order made that does bring it to an end.

Marriage also gives a spouse the right to occupy the matrimonial home, if it is owned solely by the other spouse (they would obviously already have the right to occupy if they owned it themselves, either solely or jointly with the other spouse). This right does come to an end on divorce, although it can be extended by the court making an order allowing the non-owning spouse to occupy the property after the divorce.

In addition to these matters, divorce can affect inheritance, as if a spouse dies without making a will then the surviving spouse will automatically inherit part or all of the estate.

There are also taxation consequences of divorce, although we will not detail them here.

So divorce can have legal consequences, beyond simply bringing the marriage to an end, even though in many cases the consequences will be of little or no practical effect.

Having looked at the legal consequences of divorce, we must now look at what getting divorced actually entails.

The procedure of divorce takes place in three stages: the application, the conditional order, and the final order. A divorce can only be applied for after one year has elapsed from the date of the marriage.

The first stage is that one or both parties make an application for the divorce, accompanied by a statement that the marriage has broken down irretrievably. The court must accept that statement as proof that the marriage has indeed broken down irretrievably.

The conditional order is when the court confirms that the applicant is, or the applicants are, entitled to a divorce. It can be applied for after 20 weeks have elapsed since the date of the application.

And the final order, which brings the marriage to an end, can be applied for after 6 weeks have elapsed since the making of the conditional order.

But the divorce is not usually just about dissolving the marriage. In most cases arrangements will also need to be made to sort out property and finances. These may in particular involve sorting out what is to happen to the former matrimonial home and dividing any other assets.

One of the most important other assets will often be pensions, which in many cases will be the most valuable assets, after the matrimonial home. Pensions will often be dealt with by way of a pension sharing order, whereby all or part of one party’s pension will be transferred into a pension belonging to the other party.

And when the court is asked to make a financial remedy order on divorce it is specifically required to consider whether it would be appropriate to make an order such that the financial obligations of each party towards the other should be terminated as soon after the making of the order as the court considers just and reasonable – this is often referred to as a ‘clean break’.

Having looked at what a divorce does and what it entails, we now turn to look at the alternative: legal separation.

Two types of legal separation

There are in fact two types of ‘legal separation’.

The first type is what is known as a ‘judicial separation’. This involves obtaining a judicial separation order from the court.

The second type does not involve court proceedings. In this arrangement the parties simply agree the terms of the separation, and record those terms in a written separation agreement, or deed.

Neither type of legal separation prevents a divorce application being made in the future.

Before we look at the two types of legal separation in more detail we should first consider exactly why a couple might decide upon a legal separation, rather than a divorce.

There are various reasons why the couple choose not to dissolve the marriage, at least not immediately.

They may, for example, have a religious objection to divorce. They may not have been married for a year, so are unable to apply for a divorce. Or they may simply not have reached the point where they are sure that the marriage has broken down irretrievably, and therefore want to leave the marriage in place, while they have a ‘trial separation’.

We will now look at the first type of legal separation: judicial separation.

Judicial separation

A judicial separation order does not dissolve the marriage, so what does it do?

The law used to state that judicial separation had the effect that thereafter it shall no longer be obligatory for one spouse to cohabit with the other. But this obviously had no practical meaning, as one spouse cannot force the other to cohabit with them, so this provision in the law was removed.

Judicial separation can affect inheritance, as after judicial separation if a spouse dies without making a will the other spouse will not inherit any of the estate.

But that will not be relevant in many cases, so why apply for a judicial separation at all?

The primary answer is that you can apply to the court for most types of financial remedies within judicial separation proceedings, just as you can within divorce proceedings.

But there is one very important exception.

The court cannot make a pension sharing order in judicial separation proceedings. Accordingly, if you wish to apply for a pension sharing order then you will need to apply for a divorce. You could deal with pensions in another way, for example by an ‘offsetting’ arrangement, whereby the pension-holding spouse keeps the pension but the other spouse receives more of the other assets in compensation. However, that is not always a satisfactory solution, and in any event will not be possible where there are insufficient other assets, as is often the case.

And the ‘clean break’ provision mentioned above does not apply in judicial separation proceedings.

As to the procedure on a judicial separation, this is initially similar to the procedure on a divorce.

Just like with divorce a judicial separation order can be applied for by one or both of the parties to the marriage. They must still file a statement with the court, but instead of it stating that the marriage has irretrievably broken down, it merely states that they seek to be judicially separated from one another.

The next step in the proceedings is simply that the court will make a judicial separation order, upon the application of one or both of the parties. There is no conditional order, just one final order.

Separation agreements

Which brings us finally to separation agreements.

As mentioned above, where the parties agree to separate and agree upon arrangements for children and finances they may simply incorporate the agreement into a written separation deed.

The primary purpose of the deed is to record what has been agreed. Whilst the deed is technically a contract, if one party does not keep to the terms of the agreement then the other will not normally sue them for breach of contract.

Instead, the most likely scenario is that they will either apply to the court for a child arrangements order or, in relation to financial arrangements, commence divorce proceedings, and ask the court to make an order in the terms set out in the agreement. The court is not bound by the terms of the agreement, but will take it into account when considering what financial orders to make.

Otherwise, the effect of a separation agreement is similar to a judicial separation, although it will have no effect upon inheritance. Whether you seek a divorce, a judicial separation or a separation agreement, Walker Family Law can help. For more information about our divorce and separation services, see this page.