If you are facing the end of your relationship with your spouse, you may be considering separation or divorce. Legal separation, also referred to as judicial separation, is a formal process that involves asking the court to make an order setting out the terms of your separation.
If you are not at the point of wanting a divorce, a legal separation can protect your position. If you do not intend to divorce for a long time or at all, a legal separation may be recommended to give you a level of certainty and security.
We take a look at the differences between divorce and legal separation and when each might be appropriate.
What Is The Definition Of Divorce?
A divorce is the legal ending of a marriage. Once you start divorce proceedings in court, you will need to wait 20 weeks before you can apply for a conditional order, giving you a cooling-off period to consider matters. Six weeks after your conditional order is granted, you can apply for a final order, which will mean that you are divorced.
It is important to deal with other related issues before your divorce is finalised. For example, if you do not reach a financial agreement with your spouse, then you risk having a claim made against you in the future, however long ago you divorced, as a divorce does not in itself end your financial obligations to each other. You are strongly advised to take legal advice before commencing divorce proceedings to ensure that your rights and interests are properly protected.
What Is Judicial Separation?
A judicial separation also requires an application to the court for an order for judicial separation. The court can include details of the rights and responsibilities of each of you in order so that you have clarity over your future arrangements.
This differs from a separation agreement, which is an agreement entered into by you and your spouse rather than an order of the court.
For more information, see separation agreements.
Decree of Judicial Separation
To obtain a judicial separation, an application needs to be made to the court. Unlike a divorce application, there is no need to wait for a year after your marriage to make the application.
If your spouse does not contest the application, there is a 20-week cooling-off period, after which time the court will set a date for the issuing of a judicial separation order, also referred to as a decree of judicial separation.
On What Grounds Can I Divorce?
There is a single ground for divorce, namely the irretrievable breakdown of the relationship. Since the introduction of ‘’no-fault’ divorce, there is no need to provide any facts demonstrating irretrievable breakdown; it is enough to state in your application to the court that the relationship has reached this stage.
Divorce And Judicial Separation Compared
If you are judicially separated, you remain married and you will not be able to marry again unless you divorce. Your marital assets will remain owned by both of you unless otherwise ordered, but your spouse will no longer be entitled to certain benefits such as health insurance provided by your employer. The court can decide to divide your assets, except pensions, which can only be shared during a divorce.
The Difference Between Judicial Separation And A Separation Agreement
Judicial separation involves a court order, while a separation agreement is a written contract that is entered into between you and your spouse.
A separation agreement sets out the arrangements that you have made in respect of a range of issues such as ownership of your property, who will live there and who will pay the bills, who is responsible for debts, what maintenance will be paid and how shared assets will be dealt with.
Why Choose Legal Separation?
Legal separation removes uncertainty from the situation as the terms of your separation will be set out in a court order and as such, will be legally binding. As you will both know what is expected of you, a judicial separation is often able to reduce the chance of conflict. For more volatile separations, judicial separations are preferred. However, in more amicable separations, a legal separation is more appropriate.
How Do I Apply For Judicial Separation?
An application needs to be made to the court for a judicial separation. As with divorce, you are strongly advised to seek legal advice before applying to ensure that your financial and other interests are protected.
Can I Get Divorced After Being Legally Separated?
You can ask the court for a divorce at any stage, once you have been married for at least one year.
Let Witan Solicitors Help You
At Witan Solicitors, we represent clients in both divorce and legal separation proceedings. We understand how important it is that your legal rights are protected and we will work to secure the best possible terms on your behalf.
If you would like to discuss divorce or legal separation with an experienced family lawyer, email us at info@witansolicitors.co.uk or fill in our contact form.
