Legal separation vs divorce – what’s the difference?

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.

  1. How much does a legal separation agreement cost?

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.

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

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.

amicable tips if you’re considering a legal separation

Seek advice before heading down this route. There are cheaper, faster, options that will save you hassle, time and money. Get in touch for a free 15-minute advice call here.

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 the legalities around divorce and separation.

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