Divorce vs Judicial Separation: Which is Right for You? 

When a marriage faces challenges that seem irreconcilable, couples may consider either divorce or judicial separation (informally referred to as a legal separation) to redefine their relationship. While both options provide legal solutions, they carry different consequences, both emotionally and financially. Understanding these differences is crucial in making the right decision for your unique circumstances. 

This article from Consultant Family Solicitor, Amera Nazib, explores the different options and which might be right for you.

What is Divorce? 

Divorce is the legal ending of a marriage. When a divorce is granted, the marital relationship comes to an end, and the spouses are no longer legally bound to each other. Divorce also grants the freedom to remarry.  

The divorce alone does not automatically end financial obligations between spouses. When finalising a divorce or considering remarriage, couples should ensure they obtain a financial order to sever their financial ties by entering into a separate agreement. 

Couples who seek divorce usually wish to end their marriage permanently, start fresh, or enter into a new relationship. However, some may choose not to divorce due to social stigma, financial implications, or personal reasons.    

What is Judicial Separation? 

Unlike divorce, a judicial separation does not dissolve the marriage, meaning neither spouse can remarry unless they later file for divorce. However, legal separation allows couples to live apart while remaining legally married.  

Similar to divorce, judicial separation enables couples to obtain financial orders to separate their finances, outline financial responsibilities, and divide assets, except for pension sharing orders, which are not available in judicial separation cases. 

Judicial separation applications are rare in England. However, they may be used for couples experiencing marital difficulties but don’t wish to dissolve their marriage. Couples who seek judicial separation often do so for religious reasons, cultural sensitives, or personal reasons where a divorce is not suitable. This option allows them to live apart without violating their beliefs. However, judicially separated couples can later apply for divorce if they change their minds, as the law does not prevent a judicially separated couple from applying for a divorce.  

What are the requirements for Divorce? 

To legally obtain a divorce or judicial separation in England and Wales, certain criteria must be met. These requirements ensure that the process is conducted fairly and within the law. The key conditions are: 

• Time to file a petition: Before filing for divorce, the couple must have been married for at least one year. The law prevents individuals from seeking an immediate divorce following marriage, emphasising the commitment involved in entering a legal union. 
• Court Jurisdiction: The courts in England and Wales must have jurisdiction over the case. At least one spouse must have lived in England or Wales for a substantial period or have their permanent home there. This is particularly important for international couples, as disputes may arise over which country’s legal system should oversee the divorce. 
• Grounds for Divorce: To legally end the marriage, the applicant must state that the relationship has irretrievably broken down. Under the “no-fault” divorce system introduced in 2022, couples no longer need to cite specific reasons such as adultery or unreasonable behaviour. Instead, a sole or joint application can be submitted confirming the irretrievable breakdown of the marriage.

What are the requirements for a Judicial Separation? 

• Time to file a petition: Unlike divorce, an application for judicial separation can be submitted at any time after marriage, including within the first year. 
• Court jurisdiction: The court must have jurisdiction over the proceedings, based on the parties’ habitual residence or domicile. 
• Grounds for judicial separation: Unlike divorce, applicants do not need to prove that the marriage has broken down. Couples can simply state that they wish to apply for judicial separation. 

Which is the easier route?  

Neither divorce nor judicial separation is simple. Both processes take time, cost money, and require important decisions. There is no shortcut, as both involve dividing assets and property and, if children are involved, arranging child arrangements. 

Before initiating a petition, couples should consider the following factors:  

• Financial arrangements: To assess financial needs such as housing, property ownership, savings, debts, loans, and potential spousal maintenance. 
• Child arrangements: If children are involved, both parties must consider parenting responsibilities, including living arrangements, such as where should the children live, how should they spend time with both parents, and financial support. 

When dealing with child arrangements and financial settlements, couples should consider Alternative Dispute Resolution (ADR). Many opt for mediation or collaborative approaches to settle disputes amicably, rather than relying on court proceedings which can be stressful and expensive. 

What are the key differences and considerations? 

The table below outlines some key distinctions to keep in mind when deciding between divorce and judicial separation. While it covers important factors, it is not an exhaustive list of all the differences. 

Is divorce or judicial separation best for me?

Choosing between divorce and judicial separation depends on personal, financial, and emotional factors.  

• If both parties are certain they want to end their marriage permanently, divorce may be the better option.  
• If they wish to remain legally married due to religious beliefs, financial advantages, or the possibility of future reconciliation, judicial separation could be a more suitable solution.  

If you are considering a legal separation or divorce, consult a family solicitor at Setfords, we can help make an informed decision, guide you through the process, and advise you along the way.  

The content of our articles is provided for general informational purposes only and should not be considered a replacement for professional advice specific to your situation. We are always happy to discuss any queries or concerns you may have. We cannot be held responsible for any loss resulting from actions taken or decisions made based on this article.