When a marriage becomes strained, you are faced with two choices. While divorce is a well-known option, legal separation is often overlooked. What exactly is legal separation, and how does it differ from divorce?
In many cases of marital dissolution, couples choose to pursue divorce. Divorce and the associated financial arrangements sever all legal ties between spouses—financial and personal assets are divided, allowing both parties to move forward independently. However, another option that many couples are less familiar with is separation. But what sets separation apart from divorce? In this discussion, we explore the advantages of each approach and considerations that might lead you to prefer one option over the other.
What Does Separation Mean?
When you reach the decision that continuing your relationship with your spouse is no longer viable and you are considering divorce, it’s common to first opt for a trial separation to create space for evaluating the situation. Living together as a married couple while facing the issues that led to considering divorce can be challenging. However, agreed-upon separations can become complicated, especially when children or financial matters are involved.
Legal separation offers the opportunity to establish an agreement, known as a separation agreement, that outlines the rights and responsibilities of both you and your partner while living apart. Despite not residing together, you remain legally married. Nonetheless, having a separation agreement in place can bolster your position if divorce is contemplated in the future.
A separation agreement can address various issues and prove particularly valuable during a trial separation where defined responsibilities are desired. This agreement can cover matters such as child custody arrangements—deciding where children will reside and visitation schedules—as well as addressing the handling of debts, assets, and the mortgage.
It’s essential to understand that a separation agreement is not a court order and lacks legal binding. However, it serves as an informal but mutually agreed-upon arrangement that both parties feel compelled to honour. This approach ensures that crucial aspects such as financial division and child custody are documented in written form rather than relying solely on verbal agreements.
Furthermore, some individuals opt for separation over divorce due to religious considerations.
Which should you choose?
The Advantages of Separation
Separation may seem like a temporary solution since you remain legally married to your ex-partner. However, there are several advantages to choosing separation over immediate divorce:
- Deciding if divorce is the right choice: Legal separation provides an opportunity for you and your spouse to live apart and assess whether divorce is truly the best option. When a marriage is troubled, attempting to resolve disputes while residing together as a married couple can exacerbate issues. Remaining in the marital home can serve as a constant reminder of problems, making it challenging to reflect on the reasons for your initial connection. Time apart during separation allows space for reflection, potentially leading to a renewed desire to reconcile. Opting for separation initially can save both time and financial resources that would otherwise be spent on divorce proceedings.
- Religious considerations: For individuals whose religious beliefs oppose divorce, a separation agreement offers a way to maintain marital status while living separate lives from their partner.
- Child arrangements: Determining child custody and visitation arrangements through court battles can be emotionally draining and financially costly, with adverse effects on children. Despite any personal disagreements between you and your ex-partner, prioritising the well-being of your children is paramount. A separation agreement allows for negotiation of child arrangements, such as living arrangements and visitation schedules, outside of court, minimising conflict and prioritising the needs of the children.
Can I just get a divorce instead?
If you are determined to divorce your spouse, you might question the necessity of a separation. It’s a valid inquiry, and indeed, a separation agreement may not be essential in every case. However, it can serve a purpose by facilitating the divorce process later on.
If you and your spouse have maintained fidelity during the separation period and neither has behaved unreasonably, a separation agreement allows you to demonstrate that you have been living apart for the required time (a minimum of two years) to meet the divorce conditions.
Divorce proceedings are largely administrative unless contested by your spouse. In such contested cases, having a prior legal separation can strengthen your position. While separation agreements are not legally binding, when properly drafted, they constitute a valid legal document. It is crucial to have your separation agreement prepared by an experienced family law solicitor to ensure its validity.
Disputes over finances or child arrangements can be emotionally draining and often arise during divorce proceedings. If your spouse has failed to comply with the conditions specified in the separation agreement—especially those related to child arrangements or other disputes—this can be presented as evidence and may influence the court’s final decision.
Are you contemplating divorce?
DLS Solicitors is a distinguished London-based firm specialising in all aspects of family law.
Our team of family law solicitors is equipped to assist you through the process, clarifying the distinctions between separation and divorce to ensure you make an informed decision. Contact us today to schedule your no-obligation consultation.
