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Usually, when people think of ending a marriage, divorce is the first thing that comes to mind. However, there are other ways in which a couple can separate without going through the divorce process. One way of accomplishing this is through legal separation.
In this article, we’ll be covering the basics of legal separation, alongside comparing the process to divorce and how it may be better or worse.
What is legal separation?
Legal separation, also known as judicial separation, allows couples to legally separate without ending their marriage. This process formalises a de facto separation and is sought via a court order.
This process allows the court to make orders and dictate spouses’ rights to property, assets and decisions regarding children after separating.
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What are the differences between legal separation and divorce?
Legal separation and divorce differ in a number of ways. In most cases, it would be better for a couple to file for divorce. However, it is not always possible or the most feasible option at the time.
Listed below are the main differences between the two processes:
- Separation does not formally end a marriage in the same way that divorce does. The separation will only allow the spouses to live apart without actually ending the marriage. Divorce, on the other hand, will completely end the marriage.
- The marriage must have lasted at least a year to be eligible for divorce. There is no time restriction in place for when you can apply for separation.
- The divorce process is slightly more complicated. You’ll need to submit both a Conditional Order and Final Order when applying for a divorce. The route for legal separation only requires a single application to be submitted.
- During a divorce, the court can split a pension, whilst you cannot obtain a pension sharing order through separation. This is probably one of the biggest differences aside from the ending of the marriage.
Is legal separation the same as a separation agreement?
No – they are not the same thing. Legal separation is a formal process that must go through the court. A separation agreement is instead an informal agreement made between spouses, dictating the division of property, assets and children.
Importantly, you can fill out a separation agreement whether married or unmarried. If you’re cohabiting and unmarried, you may instead find a cohabitation agreement useful.
Whilst not legally binding, you may use a separation agreement later down the line during a divorce to prove that both parties agreed to the terms.
Why would I choose legal separation?
There are several reasons why a legal separation may be the optimal route for ‘ending’ a marriage. For example, it could be because:
- Your marriage has lasted less than a year.
- There are religious reasons stopping you from applying for divorce (e.g. certain branches of the Catholic Church forbid divorce.)
- You may not want the marriage to formally end but you wish to temporarily separate from your partner. This might include wanting a temporary break from your partner to see if the magic of your marriage is still ‘alive.’
- You may wish to delay a divorce for your children until they are grown up.
As each situation is unique, it may be worth weighing up which route for you and your spouse to take when looking to end your marriage.
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Can I contest legal separation?
You cannot contest legal separation. Alongside the no-fault divorce update, the process of getting out of a potentially unhappy relationship is now easier and more amicable than ever.
That being said, you can contest a separation agreement. You are not legally forced to sign or agree to the contents of such an agreement, therefore leaving choices on financial and child arrangements up to the court.
What are the advantages?
The advantages of legal separation are:
- There is no time limit for when you can seek to separate.
- A formal agreement like this can help alleviate any tension in the marriage and allow you to assess the potential of divorce down the line.
- If you do later decide to continue with your marriage, you can just carry on as normal. You do not have to submit any applications to do this.
- The process is simpler and requires less paperwork than divorce.
What are the disadvantages?
The disadvantages of legal separation are:
- You cannot remarry after becoming separated. This is because your marriage is still legally valid.
- If you later decide to apply for divorce, you will have to go through the entirety of the divorce process. However, if you have set up a separation agreement beforehand, this will ease the sorting of financial assets and child management.
- As you are still technically married to your spouse, if you were to die without a will, everything you own would pass onto them.
How can I get a legal separation?
Legal separation begins with either a joint or sole application. Parties that both agree to the separation tend to use a joint application. On the other hand, a sole application will be used if only one party is seeking to separate, or if they are under threat of domestic violence.
Once sent, the application, known as a judicial separation form, goes to the court. You’ll have to send three copies whilst also keeping one for yourself. You’ll also have to send £365 to the court for this.
It is definitely worth considering a solicitor to draft or review your application in order to mitigate any potential pitfalls, such as the court denying it.
How can Britton and Time Solicitors help?
If you’re seeking or considering legal separation, we can help. Our expert team can guide you along the process, or help you decide if divorce or another option may be more suitable.
For an initial consultation of £108 inclusive of VAT, we can offer you:
- Unlimited time to go through the details of your case and ask any questions you may have
- An overview of your legal standpoint and your available options
- A precise time and fee estimate for your case
If you need help today, contact us via [email protected] or simply call us directly on 0203 007 5500.
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