Legal Separation: Benefits and Disadvantages

When a marriage breaks down, divorce is not always the immediate answer, some couples choose to separate formally without ending their marriage, and this is usually because of cultural or religious beliefs, or when the parties have been married for less than a year (and therefore cannot apply for a divorce as yet) as detailed below.

Sometimes, it can also be the case that a couple are not ready to make the permanent step to legally end their marriage through a divorce process and therefore opt to separate and set out the terms of their separation though a separation agreement, which as discussed below is not a final and binding outcome, but can suit some couples.

The disadvantages of legal separation are often just as important to understand as the benefits. This blog explains what legal separation means in England and Wales, how it differs from divorce, and who it might suit.

What does ‘legal separation’ mean in England and Wales?

In England and Wales, there is no legal process called a ‘legal separation’. What exists instead are two different routes that allow married couples to live apart and regulate their affairs without formally ending their marriage.

The first is a judicial separation, which is a formal court process that allows the court to make financial orders and deal with arrangements between the couple, while leaving the marriage legally intact.

The second is an informal separation, sometimes recorded in a separation agreement, which is a private arrangement between the couple that documents how they intend to manage finances, property and children while living apart but without any court process.

Both are explained in more detail on our pages on judicial separation and informal separation. This blog focuses on the benefits and disadvantages of choosing separation over divorce.

What are the advantages of separation over divorce?

There are several reasons why a couple might choose to separate rather than divorce.

Religious or personal beliefs

For some couples, ending a marriage permanently through divorce conflicts with deeply held religious or personal values. Separation allows the couple to live entirely separate lives, deal with their financial claims to the extent they are able to, and regulate arrangements for children, while keeping the marriage legally in existence, and thus retaining the parties’ marital status. This can be important where the teachings of a particular faith do not recognise divorce.

The one-year rule

A divorce cannot be applied for until the couple has been married for at least one year. Where a marriage has broken down very quickly and is under one year old, separation provides a way for the couple to regulate the financial claims either in a separation agreement or if there are judicial separation proceedings via a court order. However, it is important to be aware it is not possible to make an application for all the financial orders that would be available under a divorce application, the court cannot make orders in relation to pension sharing and there cannot be a clean break order as the parties remain married.

Pension and inheritance rights

Remaining legally married preserves certain rights that are lost on divorce. These include the right to inherit under a spouse’s will (or on intestacy if they die without a will) and, in some cases, rights to a spouse’s pension on death. For a spouse who stands to benefit significantly from these entitlements, separation rather than divorce may be financially advantageous over divorce dependent on their circumstances.

Time and space

Some couples are not ready to make the permanent decision to divorce. A separation gives both parties time and space to reflect, without the pressure of divorce proceedings. Where there is a possibility of reconciliation, separation preserves that option in a way that divorce does not.

Tax and benefits

In some circumstances, remaining married can have tax or state benefits implications. For example, the marriage allowance (which allows one spouse to transfer part of their personal income tax allowance to the other) is only available to married couples. Some couples may also find that their entitlement to certain means-tested benefits is affected by their marital status. These are matters on which specialist tax and financial advice should be taken.

What are the disadvantages of separation over divorce?

The disadvantages of separation for many people they outweigh the benefits.

• It does not end the marriage. This is both the defining feature of separation and, for most couples, its central disadvantage. You cannot remarry while legally separated. If you want to move on and form a new legal union, you will need to divorce at some stage. Separation is, for most people, a delay rather than a final resolution.
• Separation agreements are not final and legally binding. An informal separation agreement is a contract between the parties, not a court order. It cannot be directly enforced in the way that a financial remedy order can. If one party later refuses to honour its terms, it is possible for them to make an application to the family court for it to determine how assets should be divided and the court will then decide whether they should be held to the agreement or not. .They also do not close off future financial claims in the way that a court-approved financial order on divorce does as the court has made no order dismissing the parties financial break and giving them a clean break from each other. Either party can still bring financial claims against the other at any future point, including against the assets they have acquired following the separation and even years later, until those claims are formally resolved by a court order. The risk of a future claim remaining open indefinitely is one of the most important disadvantages of separation compared to divorce.
• Judicial separation can be costly and time-consuming. A judicial separation is a formal court process that requires an application to be made and financial proceedings run alongside it in much the same way as on divorce. It does not offer a simpler or cheaper route than divorce in most cases and for couples who are likely to divorce eventually, it can mean going through a similar process twice. As set out above it also does not provide a clean break and pension sharing is not possible.
• Complexity on death. Remaining married while living entirely separate lives can create significant complications if one spouse dies without having updated their will or without a will at all. The surviving spouse may have inheritance rights that do not reflect the reality of the relationship, which can cause difficulties for other family members or beneficiaries.

Is separation right for me?

The answer depends on your individual circumstances, including your religious or personal values, your financial position, whether you have children and what you ultimately want your future to look like. For some couples, a period of separation is a genuine first step that preserves the possibility of reconciliation. For others, it is simply a delay in reaching a final resolution that divorce would provide more cleanly and with greater legal certainty.

It is worth noting that where children are involved, both judicial separation and divorce allow the court to make the same kinds of orders about where children live and how they spend time with each parent. The existence or otherwise of a formal legal process between the parents does not in itself affect the court’s approach to children arrangements.

How can we help?

If you are considering whether separation or divorce is the right choice for you, our specialist team can talk through the options in the context of your own circumstances. We work with clients across the full range of separation and divorce processes and will always aim to help you reach the outcome that best meets your needs, with as little conflict and cost as possible.

Please get in touch to speak with a member of our team, or download our free guide to divorce and separation for a practical overview of the options available to separating couples in England and Wales.