Legal Separation Vs Divorce
When considering the pros & cons of legal separation verses divorce, we must first understand the difference between legal separation and divorce.
In simple terms divorce is the legal method by which couples can end their marriage – whereas a legal separation, also known as a Judicial Separation, allows married couples to legally separate without the marriage being ended.
Often the reason for doing this is that the couple have been married for less than one year or want time to work out if they really want to end the marriage or civil partnership.
Our editorial: Separation Advice for Divorcing Couples covers all aspects of marriage separation and compares the difference between separation and divorce while also looking at some of the reasons for entering into a separation agreement with your spouse.
Difference Between Separation and Divorce
A legal separation, or judicial separation, lets a married couple make formal decisions about things like finances and living arrangements while still married and this process differs from divorce in several ways:
- Unlike divorce you can seek a judicial separation at any time after getting married, you do not have to wait until you have been married for a year
- You do not have to prove that the marriage has broken down irretrievably in order to separate, but simply indicate the grounds on which you want the separation to occur
- When filing for divorce you have to cite one of five grounds to prove that the marriage has irretrievably broken down – you only have to cite one of the grounds for judicial separation and don’t have to prove it
- There is just one decree pronouncing the judicial separation once the court is satisfied that all requirements are met, whereas two decrees are required in divorce – Decree Nisi & decree absolute
- A judicial separation does not have the same effect on pensions as divorce as you are still married, and this does mean you can’t obtain a pension sharing order, often the biggest disadvantage to legal separation as opposed to divorce
- Because the marriage has not been terminated with a judicial separation neither party will be able to remarry until a divorce is obtained, however, obtaining a judicial separation does not prevent applying for divorce later
What do you mean by judicial separation?
When a marriage turns sour there are a few different ways to handle the problem. Before entering a divorce many people decide to separate on a trial basis. This is a good way to resolve any outstanding conflicts and move on with your life.
Most couples will enter a period of separation before they consider a divorce, and indeed most divorce cases in England and Wales are based on the couple having been separated for at least 2 years prior to the filing of their divorce petition.
This period of separation can also be used to iron out differences between the couple, and the UK government is now keen for couples to avoid going to court, by making them attend compulsory mediation information sessions to try and get them to reach agreements, thereby avoiding court, and of course saving the taxpayer, the expense of using the court system.
It will also save having to engage a separation lawyer or solicitor to fight a case, and the costs that will obviously entail.
What is a Judicial Separation?
Judicial separation, or legal separation, is a legal process which is approved by the court, very much like a divorce in England & Wales. However, the process is much more formal than a couple just deciding to live apart as it is about more than simply authorising a separation.
A judicial separation enables the court to make orders about rights to property after separation, the division of assets & debts and decisions regarding the wellbeing of children.
The court orders are like those which can be made with a divorce, but without the finality of legally ending the marriage.
Why get a legal separation?
As you are still married the judicial separation is a procedure often favoured by people of certain religious faiths who may not believe in divorce, such as Roman Catholics, where divorce is regarded as technically illegal except for in very limited circumstances.
You can apply for a judicial separation at any time after getting married, you do not have to wait for a year as you would if filing for divorce. Furthermore, it should be noted that obtaining a judicial separation does not prevent either party from filing for a divorce later.
A judicial separation also acts like a divorce in terms of its effect on a Will. Following the Decree of Judicial Separation, a spouse can no longer be a beneficiary, unless a new Will is drafted specifically stating that to be the case.
How to file for Legal Separation
A judicial separation can be started by either spouse, the petitioner, by lodging a document called a petition with the court and paying the appropriate court fee. The petition sets out the details of the marriage, the names of both parties and of any children, together with the grounds chosen for the judicial separation.
The court then issues the petition by stamping it and sending a copy to the other spouse, called the respondent.
Once the respondent has received the petition they are obliged to fill in a form called an acknowledgement of service to confirm receipt and return it to the court within 7 days. The court will forward a copy to the petitioner.
At this point, if the respondent agrees to the judicial separation it will be called an uncontested judicial separation. However, if they do not agree it will be a contested judicial separation and they will have 21 days to file a response to the court.
Next, the petitioner swears a statement under oath, called an affidavit, which confirms the contents of the petition and sends it to the court.
Decree of judicial separation
Once the court has checked the documents, and if it’s uncontested the documents are approved, a date will be set for the pronouncement of the Decree of Judicial Separation.
When a judicial separation is uncontested and both parties complete and return all documents promptly the process will usually take 4 to 6 months, but it may take the court longer to process if any issues are contested.
Annulment of Marriage
If you’ve been married for less than a year and are unable to obtain a divorce then an annulment could be the answer. It can also be used if you have a religious background which means you are unable to divorce, but in order to annul a marriage you must prove the marriage is not valid. This could be because you are related, the same sex, under age, already married or not valid for another reason.
The marriage can also be annulled if it wasn’t consummated, if one partner didn’t consent to the wedding, or were forced to, if one partner was carrying a sexually transmitted disease when the marriage took place, or if the woman was carrying another man’s child during the wedding.
Most people end up getting a divorce, rather than an annulment as the procedure is more complicated and time consuming than a divorce, and more difficult to prove. It also involves both parties having to attend a hearing in open court before a circuit judge.
Is a Judicial Separation the same as a Separation Agreement?
as confusing as it may seem, a judicial separation is not the same as a separation agreement – a judicial separation requires a formal court application, while a separation agreement is something which can be made informally between spouses.
When should you get a separation agreement?
If you do plan to get divorced one day, then it is well-advised to enter into a separation agreement to put the separation in writing, so this can be referred to later during the divorce to prove consent and agreement between both parties.
You should get a separation agreement if:
- You are not yet eligible to file for a divorce
- You and your spouse think there’s a chance you may reconcile after you’ve had time apart from one another
- You and/or your spouse find it less stressful to negotiate a separation agreement than to negotiate a divorce agreement
There are other reasons for entering into a separation agreement with your spouse which are covered in more detail in this article: Reasons To Consider Getting a Separation Agreement.
Deed of Separation Agreement
The deed of separation agreement, not to be confused with a legal separation, makes informal arrangements for childcare and the division or management of money, property and assets without going to court.
Any arrangements made as part of this informal separation could affect future court decisions as the court may decide to rule against some of the informal arrangements at a later date if they deem them to be unreasonable.
Separation is taken into account as a key factor in divorce judgments. If partners continue to live together during the separation then additional information will need to be provided in order to get a divorce.
A separation agreement lays out the agreements made between separating couples who are going to cease living together.
Having a written agreement in place regarding the conditions of the separation can be useful in verifying what has been agreed between separating couples.
If either partner wants to adjust the conditions of the agreement they can go to court and do so.
You should get a solicitor to help finalise the agreement but negotiating and reaching agreements beforehand can help to reduce costs later on when you decide to divorce.
Is a separation agreement legal?
A divorce court has to take into account any separation agreement reached between divorcing parties.
In the event of a dispute, the court is obliged to take the fact that there is a separation agreement into account. This is one of the determining factors in any financial dispute and is contained in Matrimonial Causes Act (Section 25 1973 Amended).
Therefore, a separation agreement drafted by qualified family law solicitors is legal.
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