Thinking of separating from your spouse? Deciding on the best option for you can be hard. Divorce may feel too final, but is separation a better alternative?
It’s natural to have questions, so this guide explains the legal and financial differences between separation and divorce, as well as the processes involved, to help you make a more informed decision about your future.
Key Takeaways:
- 1. Divorce legally ends a marriage and enables you to apply to court for a financial order that reduces or prevents future financial claims from your ex-spouse (also known as a ‘clean break’).
- 2. Separation keeps you legally married, but still allows for formal agreements on property, finances, and children.
- 3. It’s important to weigh up the impact both options could have for you and your family, as the right choice depends on your individual circumstances and beliefs.
Can you legally separate without a divorce?
Yes, you can legally separate without a divorce. Unless you apply for an annulment (which is granted in very few circumstances), you can’t start divorce proceedings until you have been married for at least one year.
Separation enables couples to live apart while retaining their legal marital status. It’s often chosen for reasons like religious beliefs, the possibility of reconciling the relationship, or to keep the other benefits of marriage, such as inheritance or tax advantages.
What are the differences between separation and divorce?
Long-term separation means you live separately, while staying legally married. This can be on an informal or formal basis. If you separate on an informal basis, any agreement concerning financial matters can be included in a Separation Agreement, also known as a ‘Deed of Separation’.
The more formal kind of separation is known as ‘judicial separation’. These are made by the court, which can also make limited financial orders.
If you do not see any chance of reconciliation, but don’t want to divorce, a judicial separation could be a good option. You may still have ongoing financial obligations concering your spouse, but you will keep your marital status.
On the other hand, a divorce permanently ends a marriage, and the court can make final financial orders. This can include a ‘clean break order’, which would end any future financial claims from your ex-spouse. It’s also important to note that you can’t marry anybody else (remarry) unless you get a divorce. For more of the key differences, see our comparison.
Why do people choose separation over divorce?
As separation does not put a legal end to marriage, it’s sometimes a viable alternative to divorce. This can be helpful if you wish to remain in a temporary separation while you decide whether to pursue a divorce. It can also be a good option if your religion prohibits divorce, or if you have reservations about the financial and stressful process involved in an immediate divorce. We have broken down the benefits of separation and divorce into some easy lists below.
Quick Takeaway: Separation means you live apart but stay legally married. This is useful if you’re not ready for divorce or have religious or financial reasons to remain married. Divorce formally ends a marriage, allowing you to remarry. In addition, the court has powers to make financial orders that can reduce or prevent (clean break) future financial claims.
Financial considerations for separation
Here are some important considerations when deciding whether to separate, either formally or informally, rather than proceeding with a divorce:
1. Property
If you jointly own a property with your spouse, you may be conflicted on what to do. You have many options, including selling the property, buying out the other’s share of the property, or one partner staying in the property for a specific amount of time, for example, until the youngest child of the marriage turns 18 years old. When you’re separated, you can decide what happens with the property through your separation agreement. You will both remain owners until you change this legally, leaving the chance for future claims to the property open.
Problems could arise if the property is in the other spouse’s sole name and after the agreement has been made, they fall into debt or are declared bankrupt, during the period of separation.
2. Division of Assets
Even if you enter into an informal separation agreement, should unforeseen circumstances occur, such as ill health, loss of employment and bankruptcy, the other spouse can commence divorce proceedings and ask the court to consider financial matters afresh.
3. Pensions
Many pensions provide benefits to married spouses after one passes away. Therefore, if you separate without legally divorcing, you may still be entitled to a share of your spouse’s pension if they die before you. If you divorce, pensions can be divided as part of the settlement, but no future pension claims can be made.
It is also important to note that if you formally separate by applying for Judicial Separation, the court does not have the power to make a Pension Sharing Order. This is because such orders can only be made on divorce. The court also doesn’t have the power to order a ‘clean break’ without divorce.
4. Spousal maintenance
Spousal maintenance is a court-ordered payment after divorce or separation, when one spouse cannot support themselves financially. This can also be decided in a separation agreement. As you are still married, you have a legal duty to support one another financially. If you divorce, you can either have an agreed maintenance amount or a clean break where no further spousal maintenance is paid.
5. Tax benefits
If you’re still married, you can benefit from the Marriage Allowance, meaning you can transfer part of your Personal Allowance to your spouse if one earns less than the allowance, potentially reducing the total amount of tax you pay as a couple.
Also, transfers of marital assets between spouses are usually exempt from Capital Gains Tax.
6. Inheritance rights
Will staying married but separated affect your inheritance rights? Yes, if one person dies while still legally married, the other is considered their spouse for inheritance purposes. Without a will, the separated spouse would inherit part, or all of the estate, under intestacy.
It’s important for any adult to have a will, but it is particularly vital if you choose to separate, to ensure your wishes are respected if they differ from the rules of intestacy. See more on wills by clicking here.
There is also no inheritance tax between spouses if you pass your home onto them when you die.
Benefits of staying married but being separated
- Less pressure: separating gives you time to consider if you want a divorce or potentially reconcile.
- An alternative to divorce, especially if your religion or personal beliefs prohibit it.
- Clear agreements without ending the marriage: You can put formal arrangements in place about finances, children and shared assets through a separation agreement.
- Avoid the court fee costs involved in divorce proceedings.
Benefits of divorce
- Finality and freedom: you can move on, including the option to remarry in the future.
- Financial clean break: You can agree on a legally binding settlement, meaning there are no future claims to be made against each other.
- Legal clarity: no ongoing legal ties– your legal status is unambiguous for tax, pensions, etc.
- Emotional closure: You can both fully move on from the relationship with no more legal ties to each other.
Can you live apart without any legal agreements?
You can choose to live apart without any legal processes, but you won’t have a formal order about:
- Finances
- Child arrangements
- Property and assets
If you want those formally settled, you’ll need either a separation agreement or a court order. See the legal process below.
What is the legal process of separation?
Judicial Separation
If you’re considering formally separating, speak to a family law solicitor. They will guide you through the process and help you decide if you want to separate or divorce. To get a legal separation, you must fill out a D8S form, like with a divorce, but choose ‘judicial separation’.
If you disagree about your property, children or any finances, you should try mediation to help you make a decision. If this fails, you may need to go to court. This will involve additional court fees.
Separation Agreement
Alternatively, you can create a separation agreement to record your arrangements. These aren’t legally binding, but are written contracts and can be used as evidence of the agreement reached at the time. They can, however, be challenged in court. In some cases, they can be made into consent orders, should you decide to divorce down the line.
It is important to seek the help of an experienced family solicitor so that everything is accounted for and clear, reducing the risks of disputes if used in court. Separation agreements can include any arrangement, including property, children, division of assets and the financial considerations we covered in this article.
FAQs: Separation vs Divorce
Click the question to reveal each answer.
Can I be legally separated without going to court?
Yes, you can get a separation agreement, which you can get without going to court if you can both agree on the terms.
Will my spouse still inherit my assets if we’re separated?
Yes your spouse will still inherit your assets under the laws of intestacy, unless you have a legally binding will that specifies where you want the assets to go.
Can a separation agreement be enforced?
Yes, if drafted correctly by a solicitor and signed by both parties, it can be enforced in court if you both continue to agree to the terms by the time you get divorced.
Do I still have to pay spousal maintenance after divorce?
You will only need to pay spousal maintenance after divorce if this is agreed upon in the settlement or ordered by the court.
What should I do if I have children?
It’s important to always prioritise your children when considering separation. Therefore, making a separation agreement regarding finances and rights is integral. Separating without a divorce may be confusing for your children, so having a clear agreement about how it’s going to work is advisable. Mediation is often a good place to start, where you can discuss the best options for your family such as when and where each parent will spend time with the children.
Separation or Divorce: Which is better financially?
Both separation and divorce may have different financial implications. While staying married can be better in the short term because it preserves benefits like joint tax filing and lower legal costs, divorce can provide more long-term security by permanently dividing assets and preventing future disputes in a clean break order.
Whether you choose separation or divorce, it is important to account for all finances and child arrangements, and have these agreed in writing with the help of a family law solicitor.
Why should I seek legal advice?
Choosing to separate or divorce can feel overwhelming, particularly when there are children, assets, or other financial implications involved. It’s important to seek legal advice when separating for many reasons. Primarily, to ensure that you understand the pros and cons as they apply to your circumstances. Also, to ensure that one person is not taking advantage of the other. Staying legally married can provide advantages for one spouse, but not the other. A solicitor can make sure you protect your rights and know exactly what you are entitled to. It’s important to get any agreements in writing by a legal professional, as these can be used in court proceedings.
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