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 (judicial separation) is different to a separation agreement, and both are different to a divorce.

• A legal separation (judicial separation) 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. 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 (judicial separation) and divorce dissolution.

A legal separation (judicial 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 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 submit a separation petition at court – the same form as a Divorce Application (previously called the divorce petition) and pay a court fee of £365.

The only difference is that you’re unable to submit your petition online, as with the divorce process via the government portal. 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 £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. Conversely, a divorce ends the marriage, and a dissolution ends the civil partnership. 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 childcare agreements.

There are, however, some special reasons that may influence why you wish to legally separate:

• Your religious beliefs do not align 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 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 (judicial 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.

Separation agreement:

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. You will still have the same financial responsibilities if you're still married/in a civil partnership. It’s more like an agreement between you both which 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 £365 for you to submit a legal separation (judicial separation) application.

Another cost to consider is if you need to legalise your financial arrangements. This will depend on various factors such as whether you have reached an agreement, and how complex your financial situation is. Another option is 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 (judicial separation)?

You can’t apply online for a legal separation (judicial separation). Therefore, you must post your application to the court. Your documents will need to be processed by the courts and unfortunately, the courts in England and Wales are currently very delayed due to staffing issues and the backlog of casework.

Another determining factor on how long it will take for your legal separation (judicial separation) to be processed is whether you will be submitting a financial 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.

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