What’s the difference between legal separation and divorce?

Many people ask us about the difference between a divorce and a legal separation. Confusingly, a legal separation is different to a separation agreement, and both are different to a divorce.

• A legal separation, also known as a judicial separation, is the process of going through the courts to formalise your separation
• A separation agreement is a written document that formalises how you intend to split your assets when you separate. If you would like to learn more about separation agreements, we have written a helpful guide
• A divorce dissolution is the process of going through the courts to formally and legally end your marriage or civil partnership

This blog will focus on the difference between a legal separation and divorce.

What is a legal separation?

A legal separation does not end a marriage but relieves a couple of the obligation to cohabit. It follows a similar process to divorce and many couples choose 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 submit a separation application at court – the same form as a divorce application, previously called the divorce petition, and pay a court fee of £402.

The only difference between a legal separation and divorce is that you’re unable to submit your application online as with the divorce process via the government portal. A legal separation application has to be sent in the post. If you wish to divorce after you have separated you will have to submit the divorce application again and pay an additional court fee of £593. If you would like more information on the cost of divorce, read our guide on how to keep the cost of divorce down.

As discussed above, a legal separation enables you to formally separate without ending your marriage. Most people don’t bother legally separating and choose instead to separate without recording it with the court. This is perfectly fine and it will have no impact on the outcome of your financial or childcare agreements.

Reasons you may want to legally separate include:

• Your religious beliefs
• You’ve been married for under a year

What is a divorce dissolution?

A divorce dissolution is the legal process through which a marriage or civil partnership is formally and permanently ended. Unlike a legal separation, which allows couples to live apart without ending the marriage or civil partnership, a divorce dissolution ends the marital or partnership bond.

This gives both individuals the freedom to remarry or enter into a new civil partnership.

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

Is a legal separation right for you?

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

No. Your financial arrangements aren’t automatically legally binding – even if you have gone through the court process of legal separation.

In order to make your financial arrangements legally binding, you would have to submit a financial (consent) order, the same as with a divorce, and this would need to be approved by a judge.

When are separation agreements used?

As discussed above, there are also separation agreements. Much like a prenup and postnup, a separation agreement isn’t enforceable in court. However, 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 separation agreements end future claims against each other. This isn’t true. Only a consent order can end your future claims. A separation agreement simply confirms in writing how you intend to deal with your finances.

2. How much does a legal separation agreement cost?

The courts in England and Wales charge £402 for you to submit a legal separation application.

Another cost to consider is if you need to legalise your financial arrangements in a consent order. This will depend on various factors such as whether you have reached an agreement and how complex your financial situation is.

Instead, you could choose to submit a separation agreement. However, this is not technically legally binding and therefore you may consider writing the agreement yourself.

3. How long does it take to get a legal separation?

You can’t apply online for a legal separation. Therefore, you must post your application to the court. Your documents will need to be processed by the courts, which can take some time.

How long your legal separation will take also depends on whether you will be submitting a consent order to legalise your financial arrangements. This will increase the time it takes for the legal separation to be processed.

If you’re considering a legal separation, seek advice before heading down this route. There may be cheaper and faster options that will save you hassle, time and money.

Legal separation and divorce FAQs

Why get a legal separation instead of a divorce?

If you’ve been married for less than a year or you wish to separate rather than divorce for religious reasons, then a legal separation may be the best option for you.

What is the purpose of a legal separation?

A legal separation is the process of going through the courts to formalise your separation. However, this doesn’t end your marriage/civil partnership.

What’s the difference between separated and legally separated?

You can separate from your spouse informally, or you can get a judicial or legal separation. A judicial separation formalises your separation and is usually done for religious reasons or if you’ve been married less than a year.