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.
What is the Difference Between Legal 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 Does it Mean to be Legally Separated?
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.
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.
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 them having to employ solicitors and barristers to fight their case, and the costs that will obviously entail.
When should you get a separation agreement?
- 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
Legal Separation Agreement
The legal separation agreement makes arrangements for childcare and the division or management of money, property and assets without going to court. Although any arrangements made as part of this informal separation could affect future court decisions. 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.
The court has to take into account any separation agreement reached between the parties. In the event of a dispute, the court is obliged to take the fact there is a separation agreement into account. This is one of the determining factors in any financial dispute and is contained in s.25 Matrimonial Causes Act 1973 ( as amended).
Divorce-Online have negotiated a low cost separation agreement service with leading family law Solicitors.
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.
What is a Judicial Separation
Judicial separation is a legal process, very much like a divorce, but without the finality of a divorce.
With a judicial separation, you can obtain court orders regarding your finances and children and become officially separated.
However you are still married.
This procedure is often used by people of certain religious faiths, who do not believe in divorce, such as the Roman Catholic faith, where divorce is technically illegal except for very limited circumstances.
A Judicial Separation has only one decree opposed to two decrees in a divorce.
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.
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