Legal Separation

Divorce Vs Legal Separation: A Guide To Help You Decide

Legal separation is often a very useful step to take in circumstances where divorce is not contemplated immediately.

Instead of getting a divorce, you would need something called a Separation Agreement, which is usually a written agreement between you and your spouse which regulates the financial arrangements between both of you and predetermines what should happen at some stage in the future, for example, the date of sale of the family home.

It provides certainty and though it does not have the same status as a Court Order (which is what you would get upon divorce) it certainly can prove very useful and we would always recommend it where there is likely to be a delay between your separation and ultimate divorce.

It is always advisable to get a solicitor to draft your separation agreement, as failing to do so without the benefit of legal advice can be challenged at a later date by your spouse if he/she subsequently seeks to withdraw from it.

If you are thinking of legal separation we have prepared a few of the most commonly asked questions that we get asked by our clients. If you would like a more personal response to a question that isn’t listed here or you would like a separation agreement to be drafted up, please click this link here.

What is the difference between divorce and separation?

Divorce is a legal process at the conclusion of which your marriage to your spouse will be dissolved. This has important legal implications in that you will no longer be for example your spouse’s next of kin. You will also not be a “widow” or “widower” for the purpose of pension entitlement.

This is distinct from being separated from your spouse which is a reflection of your current arrangement within the relationship. To call a separation “legal” is a little misleading in that there is no compulsory legal process to follow in order to be separated. There is one qualification to that which is where there are formal proceedings for a “judicial” separation. The process there is identical to divorce except that at the end of it you and your spouse remain married.

There are certain circumstances in which judicial separation will be appropriate, for example:-

• For religious reasons you do not believe in divorce;
• The advice you have is that you would fair better in terms of pension provision.

The list is not exhaustive. Please ask if you would like any further clarification.

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What is the date of separation?

The date you start to live separate and apart from your spouse becomes the date of separation. Separation can exist even where you continue to occupy the family home.

It is evidenced for example by living a completely separate life taking meals at different times, organising the household chores separately etc.

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Do you have to agree to be separated?

One of you can end the relationship and choose to live separate from your spouse.

In terms of trying to ensure a harmonious journey from the date of separation until (perhaps ultimately divorce) it is usually better to try and agree the arrangements of your separation if at all possible.

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If I move out of the home do I lose my claim to the home?

No – if you are a joint owner of the property your legal status of a joint owner remains unaffected.

If you are not a joint owner and the property is owned by your spouse then whilst you are still married you retain a right of occupation in the family home which can be registered with the Land Registry.

If you do move out of the family home potentially you could lose a tactical advantage. If in doubt please speak to me about this.

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Can my spouse move his/her new partner into the family home without my permission?

Whilst this remains possible in the literal sense having a third party living at your family home is not likely to continue for any length of time.

The court can be prevailed upon to regulate the occupation of the family home.

In addition as a joint legal owner of the family home you have the power to veto any third party’s presence there without your consent.

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Do I have to file any paperwork to be separated?

No – a separation can be a very informal arrangement between you and your spouse.

What is important is that you identify what the actual date of separation is.

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Can a Separation Agreement be changed once it is signed?

Normally a Separation Agreement would make provision for changes to be made by further written agreement between you. If there are to be any changes it is therefore important for such changes to be recorded in writing.

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If my spouse and I have been separated for a long time will we be divorced automatically?

No – you still have to go through the process of divorce in order to become divorced.

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See the main points from the latest Government divorce statistics >