The Difference between Legal Separation and Divorce

Under English and Welsh divorce law, a couple can decide to legally separate but not divorce. In these cases, the Family Court can issue a Decree of Judicial Separation. The couple remain legally married, but to all other intents and purposes, the Decree brings the marriage to an end in a similar way to full divorce proceedings.

To be granted a legal separation, you can give any of the same reasons as you would for divorce, such as adultery or having lived separately for two years. However, you do not have to prove that the marriage has irretrievably broken down and, as only one Decree is issued instead of two, it is a simpler process.

An important point to note is that the Decree of Judicial Separation has many of the same legal implications as a Decree Absolute. For example, the rules for dividing the couple’s shared assets are the same as those that apply to divorce and property. Also, if one partner dies, the other will no longer automatically inherit from their Will, unless the deceased has drawn up a new Will to this effect.

Given these factors, why would a couple opt for legal separation rather than divorce? For very short marriages, it is certainly the only choice as you cannot apply for divorce within a year of marrying. Divorce is also not an option if you cannot prove that the marriage has irretrievably broken down, although this is rare. Legal separation is sometimes used by couples who want time apart from one another to decide if they really want to end their marriage, and allows time for reconciliation. Perhaps the commonest reason is a moral opposition to divorce, usually on religious grounds.

A family law expert at the Co-operative Legal Services comments: ‘Legal separation is a tricky one, as you are neither truly married (even if you are legally so) or divorced and free to remarry. Very few Decrees of Judicial Separation are granted, partly because it is not very difficult to end your marriage properly by divorcing.’

‘If you are determined to separate but not get divorced, you should take expert legal advice about your situation. Your family law solicitor may recommend a Separation Agreement instead. This is legally-binding but you do not need to go to Court as you would with a legal separation. The Agreement sets out how you and your partner will manage your affairs effectively whilst staying married and leaving open the possibility of reconciliation.’

Expert advice on divorce and separation
Our expert team is here to provide free family law advice over the telephone, on a range of issues such as legal separation and divorce and property. Our service is confidential and with no obligation.

ENDS

Notes to editor
The Co-operative Legal Services provides a range of legal services that are designed to make it easier for people to access high quality legal provision. Our services include will-writing, probate, conveyancing, personal injury, employment law and family law. Free, no obligation legal advice is provided with all these services. We operate nationally and, in the last year, have given legal assistance to thousands of people. You can find out more at www.co-operative.coop/legalservices.

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Email: dave.smith@co-operative.coop