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How is a divorce defined?
First let’s start with the basics and define what divorce is and how it can come about. Divorce is the method by which couples can legally end their marriage.
In England and Wales, you have to evidence that your marriage has ‘irretrievably broken down’ in order to get a divorce. You must also have been married for more than one year.
One spouse or both spouses jointly, can apply for the divorce. Neither spouse can contest the divorce unless it is on a technicality such as a spouse believes they were not married in the first place or that the county in which the divorce application will be submitted does not have jurisdiction.
What is ‘judicial separation’?
Judicial separation allows you to legally separate without your marriage being ended. You can do this even if you have been married for less than one year.
Unlike divorce, you do not have to state that your marriage has irretrievably broken down in order to separate.
While a divorce requires two decrees from the Court, judicial separation just requires one decree, called a Decree of Judicial Separation. Once you have received this you are no longer legally a couple, but you remain married and so you can’t then remarry.
Divorce and judicial separation compared
Divorce and legal separation are similar in several ways:
- You don’t have to continue to live together
- The Court can exercise its power to divide your financial assets (with the exception of pensions)
- If your spouse is named as a beneficiary in your will, the will is no longer valid unless you make a new will specifically naming your spouse as a beneficiary.
The main differences between a divorce and a judicial separation are:
- If you get a divorce your marriage is legally over. A judicial separation means you remain married
- Once you are divorced you can remarry. You cannot remarry after judicial separation
- In England and Wales, you have to wait until you have been married for at least one year to get a divorce. You can apply for judicial separation at any time
- The Court can split a pension during divorce but cannot exercise these powers for judicial separation.
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Is judicial separation the same as a ‘separation agreement’?
No. Judicial separation requires an application to be made to the Court while a ‘separation agreement’ is something you can make informally between you and your spouse.
If you haven’t decided whether you want to end your marriage, a separation agreement is a written agreement that can cover a range of areas including:
- What happens to your home and who continues to live there
- Arrangements for children, including where they live (residence) and who they should spend time with (contact)
- Who pays any mortgage, rent, or bills
- Who is responsible for any debts, such as loans or credit cards
- How your assets are divided
- Whether one of you will pay maintenance to the other
By using a separation agreement, all these matters can be agreed without it needing to go to Court. It also provides some clarity in detailing what you and your spouse have agreed.
Bear in mind that, if you later do go to Court, the Court will take your separation agreement into account in the event of a dispute. The Court can rule against some of the arrangements you have made if they do not believe them to be reasonable.
The advantages and disadvantages of a separation agreement
Advantages
- You and your ex benefit from the certainty that a formal agreement is in place. It can help you to know where you both stand and reduce arguments and tension
- You can agree that you will no longer live together. This benefits you as the other partner can’t later claim ‘desertion’ if you do want to get a divorce
- You agree that the relationship has ended
- You can include any aspects that are important to you
- Agreements that have been fairly negotiated will typically be upheld by the Court in the event of a dispute.
Disadvantages
- Separation agreements are not easy to enforce in the event that one party does not stick to the agreement
- Both of you must agree to any changes
- If you do end up seeking a divorce, a Court can decide to ignore some or all of the contents of a separation agreement.
When might legal separation be appropriate?
We have seen that judicial separation tackles many of the same matters as a divorce, but you remain married at the end of the process. There are several reasons why you may want to consider judicial separation rather than a divorce:
- You have been married for less than one year
- You don’t believe in divorce, perhaps because of your faith. For example, divorce is only permitted in very limited circumstances in the Roman Catholic church
- You want more time to decide whether ending your marriage is the right decision.
- You have children and would prefer to delay a divorce until after they have grown up.
Remember that a legal separation does not end a marriage or civil partnership. So, you cannot remarry or enter into another civil partnership.
How do I apply for judicial separation?
You should apply to the Court using a Form D8 – judicial separation application. You can download a copy of this form on the Gov.uk website.
You have to make four copies of the application. Send three copies to your nearest divorce centre (County Court) and retain one for yourself. You must include a certified copy of your marriage or civil partnership certificate when you submit the form. Of course the wisest route is to seek legal advice so the agreement is correctly drafted and more likely to be upheld by the Court if required.
Can I get divorced after being legally separated?
Yes. If you have a judicial separation you can later apply for a divorce.
If you have been separated for more than two years, you can get a straightforward divorce as long as you both agree.
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The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.
