You've separated from your husband, wife or civil partner but aren't sure if divorce is for you, or if it's the right time. Is it possible to obtain a legal separation and should you?
It's a question asked by clients a lot. Should I get divorced; can’t we just get a legal separation? But what actually is a legal separation and is it worth your while?
What is legal separation?
Legal separation usually means one of two things:
The first is a 'judicial separation' or, in the case of civil partners, a ‘separation order’; a legal separation granted by the Court that brings about the end of marital obligations and can be accompanied by financial orders in much the same way as divorce or dissolution, but does not end the marriage.
A family lawyer wouldn't normally recommend a legal separation of this kind unless there are religious, cultural or personal reasons that make divorce the wrong fit. However, you should discuss this with your lawyer if you think it is the right choice for you.
If your legal separation is formalised in this way, there is nothing stopping you from seeking a divorce later. In practice, though, judicial separations are very rare.
Legal separation agreement
The second, more common, type of legal separation is when the parties enter into a legal separation agreement.
Essentially, this is a contract between you and your spouse or civil partner. It normally sets out the agreed financial arrangements and deals specifically with what is to happen to your assets and income.
The benefits of a legal separation agreement
A legal separation agreement can be a good idea if you want to deal with the financial aspects of your separation but would to prefer to wait 2 years to divorce on neutral grounds.It might also work if you're fairly certain that your separation is permanent but for whatever reason feel divorce is premature.
The pros of a legal separation agreement include:
- You will still be married - getting a divorce is a big step emotionally, and a legal separation leaves open the possibility of reconciliation. Staying married can also be a good decision financially as some valuable benefits, payable under pensions for example, tend to be lost on divorce.
- Certainty - you can divvy up the finances now and avoid problems later. Provided your agreement is broadly fair and has been prepared correctly, the terms of your legal separation should be upheld by the Court on divorce;
- You can get creative - with a legal separation, you can largely agree what you like, whereas the Court can only make certain types of financial order on divorce;
What are the drawbacks of a legal separation agreement?
A legal separation agreement shouldn't be viewed as the easy way out and you should be aware of the cons, such as:
- You will still be married - if you can't stomach remaining married to your husband, wife or civil partner, or you wish to remarry, a legal separation isn't for you;
- You can’t share pensions – if one party has a significantly larger pension ‘pot’, it may be appropriate for this to be shared. A common way of achieving this is by Pension Sharing Order which can only be obtained on divorce;
- It's not the final word - you can't stop the Court from making financial orders on divorce. You and your spouse or civil partner can agree what you like in a legal separation agreement but if you go on to divorce, you can't absolutely guarantee the Court will share your views. If the Court thinks your legal separation agreement is unfair, you might have to re-think, and re-negotiate.
- No clean break - only the Court has the ability to formally dismiss financial claims, so by entering into a legal separation agreement you can't be assured of a financial clean break. If you come into money further down the line, perhaps through an inheritance or even a lottery win, your legal separation agreement might not necessarily protect you from a financial claim by your husband/wife or civil partner.
Divorce or legal separation?
The above is intended to give a flavour of the sorts of thing you need to consider if you want to achieve a legal separation. In some cases, the best advice might be to start the ball rolling with a divorce straight away, whereas in others a legal separation might be the correct choice.
If you are recently separated or about to separate, it is important that you seek early legal advice so that your lawyer can help you decide on the best fit.
Zoe Tremeer-Holme is a family law specialist. For more information, contact her directly on 01228 552252 or email firstname.lastname@example.org.