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

Many people ask us ‘what’s the difference between separation and divorce?’. 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 file a separation petition at court – the same form as a 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 £550. Read our guide on how to keep the cost of divorce down, if you would like more information on the cost of divorce.

As discussed above a legal separation enables you to formally separate without ending the 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 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 arrangements be legally binding if we legally separate?

No. Your financial arrangements are not 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 order (also known as a consent order), 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 are still married / in a civil partnership. It’s more like an agreement between you, confirmed in writing of how you intend to deal with your finances.

The courts in England and Wales charge £365 for you to file a legal separation (judicial separation) application. It’s the same form you would need to fill in if you were getting a divorce or ending a civil partnership.

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.

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.

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

FAQs

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.

A legal separation (judicial separation) is the process of going through the courts to formalise your separation, however, 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 separation. A judicial separation formalises your separation and is usually done for religious reasons, or if you’ve been married less than a year.

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