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What’s the difference between legal separation and divorce?

Red and yellow shoes on side of dotted line

Originally published on 28th September 2018 at 10:20 AM

Confusingly a legal separation is different to a separation agreement. A legal separation (Judicial) is the process of going through the Courts to formalise your separation. A separation agreement is a written document that notes how you intend to split your assets on divorce. This blog will take you through the ins and outs of legal separation agreements.

A legal separation is very similar to a divorce. It allows you to live apart whilst remaining married. Many couples chose to do this informally without going to the trouble of recording their separation with the court and paying court and legal fees.

To be legally separated you must file a separation petition at court – the same form as a divorce petition and pay a court fee of £365. If you wish to divorce after you have separated you will have to submit a divorce petition (the same document again) and pay an additional court fee of £550.

Most people don’t bother legally separating and choose instead to separate without recording it with the court. This is perfectly fine and has no impact on the reasons you can use in your divorce petition or the outcome of your financial or children agreements. There are, however, some special reasons that may influence why you wish to legally separate:

  • Your religious beliefs do not agree with divorce
  • You’ve been married for under a year

Below are some common questions to help you decide whether a legal separation is the right option for you.

1. Will our financial agreements be legally binding if we legally separate?

No. Your interim arrangements are not legally binding – even if you are legally separated. Much like a prenup and postnup, a legal separation agreement isn’t enforceable in court. However, legal separation agreements, prenups and postnups will be considered by the judge if you do end up in a dispute.

It’s a common myth that legal separation agreements end future claims against each other, this isn’t true. You will still have the same financial responsibilities as you will still be married / in a civil partnership. It’s more of a verbal communication between you confirmed in writing. If you want a legally enforceable document that ends any future claims, you should consider a divorce with consent order instead.

The courts in England and Wales charge £365 for you to file a legal separation agreement. It’s the same form you would need to fill in if you were getting a divorce or ending a civil partnership. If you ask a solicitor to write up your financial agreements this will add additional costs. As its still not legally binding, even if a solicitor writes it up, you may consider writing the agreement yourself.

Your documents will need to be processed by the courts and unfortunately, the courts in England and Wales are slow. It takes on average four to six months for your legal separation to work its way through the system.

Seek advice before heading down this route. There are cheaper, faster, options that will save you hassle, time and money.

Rebecca Jones
Rebecca Jones
Rebecca has a background in family law and has also been through her own divorce. Rebecca is fantastic at offering pragmatic advice and is a fountain of knowledge when it comes to the legalities around divorce and separation.

Comments

Hi i am considering a judicial separation which allows me to time to see what I want in the long term and not a divorce right now, so how would I go about with it and cost and process involved.

posted Farrah Wateen at 29.03.2019 22:58

I live in Scotland and seeking advice on a legal separation and changing my will to suit my recent separation. I am in receipt of benefits can I have help to pay for any of the above fees??


posted Rosie morrison at 30.05.2019 16:33

I feel like piggy in the middle.. What’s the point of paying for a legally binding separation agreement that’s not ‘legal’ and I have no grounds for divorce


posted Denise Sharpe at 12.07.2019 9:06

Looking to get legal separate

posted Carlos at 22.06.2020 7:22

Hi I'm need some advice some I'm lost in all of this legal stuff. I have been in a relationship for a little over 16 years give or take. We own a house together and have a child. I can't take what this relationship has be come anymore and want to separate we remorgaged the house so and she won't sell it but but she doesn't understand there is equity still in the house because of what the house is worth on the market and expects me to walk away and hand over the house to her where do I stand with that also if I leave now I under stand that I will have to pay the mortgage or half bit do I still have to pay towards the rest of the bills as I would have to pay to live somewhere else. As for my son I have no idea where I stand or what my rights are and what child maintenance I need to pay. When my son was born I wanted him to have my surname when I searched the internet it appeared to me I had now rights so he took here surname on his birth certificate and I signed it that was pain like I've never felt be for I didn't want to go down the legal root and face loosing him as she threatend to move down to London I don't think that will happen his 10 now and has his life here school friends and so on i can't take anymore so I think it's time to move out and find out where I stand with it all.

posted Gareth at 22.10.2020 21:32

Hi I'm need some advice some I'm lost in all of this legal stuff. I have been in a relationship for a little over 16 years give or take. We own a house together and have a child. I can't take what this relationship has be come anymore and want to separate we remorgaged the house so and she won't sell it but but she doesn't understand there is equity still in the house because of what the house is worth on the market and expects me to walk away and hand over the house to her where do I stand with that also if I leave now I under stand that I will have to pay the mortgage or half bit do I still have to pay towards the rest of the bills as I would have to pay to live somewhere else. As for my son I have no idea where I stand or what my rights are and what child maintenance I need to pay. When my son was born I wanted him to have my surname when I searched the internet it appeared to me I had now rights so he took here surname on his birth certificate and I signed it that was pain like I've never felt be for I didn't want to go down the legal root and face loosing him as she threatend to move down to London I don't think that will happen his 10 now and has his life here school friends and so on i can't take anymore so I think it's time to move out and find out where I stand with it all.

posted Gareth at 23.10.2020 7:33