What Is the Difference Between Separation and Divorce?

Couple sitting in a sofa each holding one half of a broken heart poster over their faces

When your relationship with your spouse turns sour, you have two options. Many people are aware of the option to divorce, but do not know that separation is a choice. But what is legal separation and how does it differ to a divorce?

When a marriage ends, many couples opt for divorce. A divorce (and the financial arrangements) completely breaks any legal ties between you and your ex-partner — your assets, both financial and personal, are completely split — allowing you both to move on with your lives. However, there’s another option many couples aren’t aware of: separation. But what exactly is the difference between separation and divorce? In this post, we delve into the advantages of each and why you might prefer to opt for one over the other.

What Does Separation Mean?

When you realise you don’t want to be in a relationship with your spouse any longer and you’re contemplating filing for divorce, it’s likely that you’ll first separate on a trial basis to give each other space to evaluate the situation. It’s difficult to do that when you’re still living as a married couple, where the problems that have caused you to consider getting a divorce are still present. However, during an agreed separation, things can get complicated, especially when children or finances are involved.

A legal separation allows you to draft an agreement — called a Separation Agreement — that sets out you and your partner’s right and responsibilities while you are living apart. Despite not living together, you are still legally married. However, if you are planning to one day get a divorce, having a separation agreement in place can lend some weight to your case.

A separation agreement can address many issues and is particularly beneficial if you are trialling a period of separation but want to have you and your partner’s obligations set in stone. An agreement might detail issues of arrangements for children such as who your children will live with and when, and how debts and assets are dealt with, including your mortgage.

It’s important to note that a separation agreement is not a court order, nor is it legally binding. This makes for a more informal agreement that both parties feel obligated to adhere to, while still ensuring that priorities, such as dividing your finances or determining who your children will live with, are present in a written, rather than verbal, agreement.

Some people also opt for separation over a divorce for religious reasons.

The Difference Between Separation and Divorce: Which Should You Choose?

Getting a divorce is a big step, signalling the closing of a significant chapter in your life. However, a divorce isn’t as simple as signing a piece of paper to signify that you’re no longer legally married and it can lead to long, drawn-out, and therefore costly, disputes over any children, the marital home, and finances. Separating — at least for now — over divorcing does have its benefits and while you may not be able to avoid such disputes entirely, a separation agreement can help.

The Advantages of Separation

Separation may feel like a less-permanent split — after all, you will still be legally married to your ex-partner. However, there are multiple advantages to not opting for a divorce immediately:

Deciding if divorce is what you want: A legal separation allows you and your spouse to live apart and decide if divorce is what you both truly want. When a marriage is on the rocks, trying to resolve disputes while living as a married couple can actually push you further apart. When there are clear problems, living in the marital home can serve as a constant reminder and makes it difficult to remember the reasons you fell in love with your spouse in the first place. You might find that after time apart, you realise that you want to give things another go. By only separating, you save yourself both the time and financial costs of getting a divorce.

Religious beliefs: Some religious beliefs conflict with the concept of divorce. If this is the case, but you no longer want to live or be with your partner, a separation agreement allows you to retain your marital status while living your own, separate life.

Child arrangements: Determining child arrangements can lead to draining court battles that can go on for a significant time. Not only is this a costly affair, but it can also have a substantial impact on your child (or children). While there may be no love lost between you and your ex-partner, any parent will agree that your children’s well-being must come first. A separation agreement allows you to negotiate on child arrangement terms, such as who your children will live with and how often they’ll get to see your spouse, without a costly legal battle.

Divorce spelt out with dice on a table surrounding by other dice, the owrd divorce is inbetween the pages of a divorce guide book

Can’t I Just Get a Divorce Instead?

When you’re dead-set on divorcing your spouse, you might be wondering “why should I bother with a separation?” It’s a good question and the truth is that a separation agreement may be pointless in your case. However, it might also be that it aids the divorce process at a later time.

If you and your spouse have been faithful to each other, even during the period of separation, and neither of you have acted unreasonably, then a separation agreement allows you to demonstrate that you’ve been living apart for the time required (a minimum of two years) to satisfy the conditions of divorce.

A divorce is largely administrative — unless your spouse defends the divorce. It’s in these cases that legally separating first can prove persuasive to your case. As we’ve stated, separation agreements are not legally binding, but when drawn up correctly, they do constitute a legal document. A separation agreement is a written contract between you and your ex-partner and like all contracts, it can be challenged in court. This makes it vital to get your agreement drawn up by an experienced family law solicitor.

Disputes over finances or child arrangements can be particularly wearing on all parties and often crop up during divorce proceedings. If your spouse has failed to meet the conditions specified in your separation agreement — and these conditions directly relate to the dispute you’re having (such as arrangements for a child) — this can be presented as evidence and may prove persuasive to the court’s final decision.

Are you considering getting a divorce? KMJ Solicitors is a London-based firm that specialises in all areas of family law. Our team of solicitors can guide you through the process and explain the difference between separation and divorce so that you make the right decision. Get in touch with us today for your free, no-obligation consultation.

Clayton spent five years working in family law with a firm in Australia before moving to the UK in 1999. He deals with all aspects of family law, specialising in all family matters, offshore trusts, company structures, international law, prenuptial agreements, high net worth cases and cohabitation law.