News and Events

What is the difference between filling for a divorce and a legal separation?

  • Posted

Separating from your partner or filing for a divorce will obviously be a stressful and upsetting time in your life.

When faced with the prospect of dealing with various legal matters, it can be equally daunting. We often get asked about the difference between a legal separation and a divorce and so have put together some guidance surrounding this. However, every situation is different, so you should contact one of our family law solicitors in Brixton who will be able to talk to you about your legal rights and find the right solution for you and your family. 

What is a Legal Separation? 

A legal separation will not put an end to the marriage in the same way divorce will. Officially known as a judicial separation, this can be an alternative to divorce. Judicial separation does not end the marriage but simply formalises the separation.

This will enable you to live apart from your spouse but remain married, and this decision could be for several reasons such as religious beliefs, the need to remain legally married for the sake of certain financial or health benefits, or the sake of any children involved for example. It can also allow you time apart from your partner whilst you try and reconcile or come to terms with making the final decision to divorce. 

In England and Wales, there is no legal time limit on when you can start divorce proceedings, except that you must have been married for at least a year. Depending on the reason for your divorce, a period of separation may not be required before your divorce. However, if you are only recently married, less than 1 year, for example, a judicial separation could also be an option.

The process involves getting just one decree from the Court – a Decree of Judicial Separation.

Whilst you are legally separated, it will be important to draft a legal separation agreement to address matters such as any division of assets, financial responsibilities, child custody and support or spousal support. 

What makes a separation agreement legally binding?

Technically a separation agreement is not legally binding, although it is a ‘contract’ that when signed and notarized by you and your partner can act as a legally binding document. However, like any other contract, they can still be challenged in court and unless you seek the advice of a specialist family lawyer who can draft the agreement correctly, you could likely make errors or leave yourself vulnerable. 

A separation agreement is not a court order and the court is not usually involved in creating it. If a legal separation is followed up by a formal divorce proceeding, your solicitor can often turn the separation agreement into a consent order and then apply to the court, therefore making it legally binding. 

If you are considering drafting a separation agreement, it is important to seek the advice of a specialist family lawyer who can ensure it is drawn up correctly and that you fully understand any implications set out within it. Our family lawyers based in Brixton can provide expert advice and guidance on your legal rights and what you should consider when drafting separation agreements. 

What are the grounds for Divorce?

To file for a Divorce in the UK, there is a current requirement to demonstrate to the court that the marriage has irretrievably broken down. Under the existing rules, couples are required to prove one of the supporting ‘facts’:

  • That your spouse has committed adultery.
  • That your spouse has acted in such a way that it is unreasonable for you to be expected to continue living with them.
  • That your spouse has deserted you for two years.
  • That you and your spouse have lived apart for two years and your spouse consents to the divorce.
  • That you and your spouse have lived apart for five years, whether or not your spouse consents to the divorce.

If you are in a civil partnership that you wish to get dissolved, then the same “facts” will apply except that you cannot rely on adultery.

No-Fault Divorce is Coming This Year – August 2021

A new bill introducing “no-fault” divorces in England and Wales has been backed by MPs, who have voted in favour of the latest stage of the 'Divorce, Dissolution and Separation Bill’.  

Once introduced, the updated legislation will allow a statement of irretrievable breakdown and will mean that couples can remove fault from the divorce process.

It will also allow for a new option in the divorce proceedings, in which couples can jointly apply for a divorce where the decision to separate is a mutual one. Terms such as “decree nisi” and “decree absolute” will be replaced with “conditional order” and “final order” and “petitioners” will also become “applicants”. 

There will be a minimum time frame of 20 weeks (6 months) post the petition stage, with an “opportunity to reflect and turn back”. If an applicant upholds their decision to get divorced after this period, couples will be able to have their divorce granted. 

What are the Main Differences between Judicial Separation and Divorce? 

The main differences between a divorce and a judicial separation are:

  • Judicial separation does not legally end the marriage, but a divorce does
  • You cannot marry other people whilst legally separated but you can after getting divorced
  • You will need to prove that your marriage has irretrievably broken down to get divorced
  • You do not have to prove your marriage has irretrievably broken down to get a judicial separation
  • You can get a judicial separation at any point, but with a divorce, you must wait until you have been married for at least one year
  • The Court cannot exercise its powers to divide a pension pot with a judicial separation, which it can with a divorce.

Divorce Solicitors in Brixton 

If you are considering a legal separation and would like advice regarding legal separation agreements or have made the decision to file for a divorce or to dissolve a civil partnership, then our local divorce lawyers are on hand to provide the guidance you need.

We take great pride in building strong client relationships during what is a difficult time for our clients. We regularly represent parents, children, guardians, and family members in care proceedings brought by the local authority.