What is legal separation?
Legal separation allows you to separate formally without ending your marriage.
If you’re considering getting divorced, legal separation can be a useful interim option. While you remain legally married, you can make a separation agreement to decide how to divide your assets and make arrangements for your children.
By organising a separation agreement ahead of time, you can often avoid going to court, saving time and money.
To be classified as separated, you need to live separately.
What is a separation agreement?
A separation agreement is a written agreement that sets out your financial arrangements and responsibilities to your spouse or civil partner while you are separated. This can help make the separation more amicable and provides more legal protection than having no agreement in place.
A separation agreement can include things like:
- Who pays the mortgage, rent, and household bills
- Who stays in the home, and how the money will be split if it is sold
- How you will divide savings, investments, and other financial assets
- What happens to valuable items, such as cars or jewellery
- Whether someone will pay child maintenance to support any children, and where they will live
Are separation agreements legally binding?
Separation agreements are not technically legally binding. But if there is a dispute, the court will generally uphold what you agreed, provided the agreement was properly drawn up.
A divorce solicitor can help make sure the agreement gives you the best possible protection.
How many years do we need to be separated?
You must have been married for at least a year before you can get divorced, but there is no reason why you cannot separate before this.
If you have been separated for two years and both agree to the divorce, you can use that as grounds for divorce. If you want to divorce but your spouse does not consent, you will need to have been separated for five years.
In some cases, there may be periods when you live together during the separation. But the separation can still count, provided the time living together does not add up to more than six months and you have been apart for two years in total.
What’s the difference between legal separation and divorce?
Legal separation and divorce can look similar, especially if you have a separation agreement in place to organise who gets what. But there are important differences.
Legal separation does not offer as much protection from your spouse as divorce.
For example, if you are separated but still jointly own a home, your ex-partner can move back in whenever they like. You are also not allowed to change the locks. The only way to change this is through a divorce or an injunction.
There are also risks with shared accounts. Your partner could spend more than their fair share of your shared savings without you being able to stop them. They could also damage your credit rating through reckless borrowing.
It is also worth remembering that if you do not have an updated will in place, your separated spouse may still have the right to claim on your estate.
What is the cost of divorce after years of separation?
If you have been separated for two years, you can use this as grounds for divorce if both parties agree. This can make divorce a cheaper and possibly quicker option, as you have already shown that you are living separately and both want to proceed.
If your spouse does not consent to the divorce, but you have been separated for five years, the divorce may still be more straightforward.
The cost of divorce usually increases depending on how much administration, negotiation, and organisation is needed between the couple. If you already have a separation agreement in place and both agree to follow it, the divorce process is often simpler and less expensive.
What about in Scotland?
In Scotland, the separation period needed before divorce is shorter. If both of you agree to the divorce, you only need to have been living separately for one year. If one partner does not agree, you need to have been separated for two years.
If you are divorcing in Scotland, do not have any children under 16, and agree about how to divide your finances, you may be able to apply for a DIY divorce. This is handled through your local sheriff court or the courts and tribunals service.
If you have young children, or the divorce is more complicated, you will need an ordinary divorce. This will go through the courts and may be contested or uncontested. The process is easier when both spouses agree.
Is legal separation right for me?
Ending a marriage is never easy, but legal separation can offer several advantages.
It can give you time to assess how you feel while putting clear expectations, responsibilities, and financial arrangements into a formal separation agreement.
There is no reason why separated spouses cannot decide to get back together. It is also possible to remain separated for as long as you like, with no pressure to divorce. This can be useful if neither of you wants to remarry, or if there are young children involved.
Often, separation is simply a step towards divorce, with rules in place that will later be taken into account when the divorce process starts. But it is becoming more common for couples who have split amicably to remain separated instead. In some cases, couples find that staying separated is financially beneficial.
However, if you do want to get divorced, a legal separation agreement can make things easier later on. You will already have discussed money, property, assets, childcare, and housing issues. Your legal separation agreement will be considered when you divorce, and any changes can then be formally recorded.
Get legal advice
It is always worth talking through your options with a legal expert to decide whether legal separation is right for you.
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