Legal Separation vs Divorce

Claire Andrews

Legal separation and divorce are two distinct paths for couples facing marital difficulties. This article explores the key differences between legal separation vs divorce, providing valuable insights for those contemplating their options.

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 halfway 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?

The difference between legal separation and divorce is significant, although both processes involve a couple living apart. Legal separation keeps the marriage intact, while divorce dissolves it completely. 

Marriage status

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.

Court proceedings

Both legal separation and divorce involve court proceedings, but the outcomes differ. Legal separation allows couples to obtain a formal separation through a court order. This process is similar to divorce, involving property division, custody arrangements, and support orders. Divorce, however, legally ends the marriage. It involves more comprehensive legal proceedings, including the division of assets, determination of child custody, and potential pension sharing.

Financial implications

Legal separation often allows couples to retain certain financial benefits. Health insurance coverage may continue for both spouses, Social Security benefits might be preserved, and tax advantages of filing jointly may be maintained. In contrast, divorce typically terminates these shared financial arrangements.

Reconciliation potential

Legal separation offers an easier path to reconciliation. Couples can simply get back together or file a motion with the court to end the separation. Divorce is more permanent, and reversing it would require remarriage. In most states, couples can remain legally separated indefinitely. However, some states impose deadlines on legal separations, requiring couples to decide whether to reconcile, extend the separation, or proceed with divorce.

Purposes of legal separation vs divorce

Legal separation can serve various purposes, such as a trial period before deciding on divorce, allowing couples to live independently while maintaining religious beliefs that prohibit divorce, providing time to arrange finances before a final divorce, or enabling couples to continue benefiting from shared insurance or tax advantages. While legal separation can be reversed relatively easily, divorce often involves more comprehensive legal proceedings and may have different emotional and social implications compared to legal separation

What are the benefits of staying married but separated?

The benefits of staying married but separated can be significant for couples facing marital difficulties. This arrangement offers a unique middle ground that allows individuals to live apart while maintaining their legal marital status. Here are some key advantages:

• Financial stability is a major benefit of staying married but separated. Couples can continue to enjoy shared health insurance coverage, tax advantages, and access to social security benefits. This can be particularly helpful for those with health issues or limited income. Additionally, separated couples may still file joint tax returns, potentially reducing their tax liabilities.
• Emotional and personal growth is another important aspect. Legal separation provides time for reflection and personal development without the finality of divorce. It allows couples to assess their feelings, work on individual issues, and consider the best path forward, whether that leads to reconciliation or a more permanent separation.
• For couples with children, staying married but separated can offer a more stable environment. It allows parents to maintain a united front, providing consistent parenting and reducing the emotional impact on children. This arrangement can also preserve extended family relationships and traditions.
• Legal and property considerations are also simplified. Couples can navigate property settlements and inheritance issues more flexibly, potentially avoiding contentious court battles. This can lead to more amicable agreements and reduced legal fees.
• Lastly, for those with religious or moral objections to divorce, legal separation provides an alternative that respects these beliefs while allowing individuals to live on their own terms. It carries less social stigma compared to divorce and leaves the door open for potential reconciliation in the future.

Overall, the benefits of staying married but separated offer couples a chance to address their issues while maintaining certain advantages of marriage, providing a unique solution for those navigating complex relationship challenges.

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

The end of a relationship is a complex process that requires considerable thought and reflection. 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.