What is legal separation?
Legal separation allows you to legally separate without ending your marriage.
If you’re considering getting divorced, a legal separation can be a good interim option. While you’ll formally remain married, you can make a ‘separation agreement’ to decide how to divide up your assets and make arrangements for your children.
By organising a separation agreement ahead of time, you often don’t need to go to court, saving you 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 when you’re separated. This can help to make the separation more amicable. And it provides more legal protection than having no agreement in place.
A separation agreement can include things like:
Who pays the mortgage, or rent, and bills
Who will stay in the home, and how the money will be split if it’s sold
How you’ll split savings, investments, and other financial assets
What happens to valuable items, like cars or jewellery
Whether someone will pay child maintenance to support any children, and where they’ll live
Are separation agreements legally binding?
Separation agreements aren’t technically legally binding. But the court will generally uphold what you agree to if there’s a dispute. So, you’re more protected by having a separation agreement, provided it’s been drawn up correctly.
A divorce solicitor will help ensure that 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’s no reason why you can’t separate before this.
If you’ve been separated for two years and both consent to the divorce, you can use that as grounds for divorce. If you wish to divorce but your spouse doesn’t consent, you’ll need to have been separated for five years.
In some cases, there may be periods when you do live together during this time of separation. But the separation stands provided it doesn’t add up to more than six months, and you’ve been apart for two years altogether.
What’s the difference between legal separation and divorce?
While legal separation and divorce can look quite similar, (especially with a separation agreement in place to organise who gets what) there are differences.
Legal separation doesn’t offer as much protection from your spouse as divorce.
For example, when you’re separated but jointly owning a home, your ex-partner can move back in whenever they like. You’re also not allowed to change the locks. The only way to change this is through a divorce or an injunction.
Similarly, there are risks with shared accounts. For example, your partner could spend a disproportionate share of your shared savings without you being able to stop them. Or they could damage your credit rating through reckless borrowing.
It’s also worth considering that if you have no updated will in place, your separated spouse still has the right to claim on your estate.
What is the cost of divorce after years of separation?
If you’ve been separated for two years, you can use this as grounds for divorce, if both parties agree. This will make divorce a cheaper and possibly quicker option, as you have shown the courts you are already separated and are both willing to get divorced.
If your spouse doesn’t consent to the divorce, but you’ve been separated for five years, the divorce will go through more easily and can be more straightforward.
Costs of divorce increase according to how much admin, back and forth and organisation needs to be done between the couple. If you’ve already created a separation agreement, and you both agree to fulfil the terms you laid out at the beginning of your separation, your divorce will be a lot more straightforward and less costly.
What about in Scotland?
In Scotland, the threshold for separation in order to qualify for divorce is lower – if you both consent to a divorce, you only need to be living separately for a year. If one partner doesn’t consent, you need to have been separated for two years.
If you’re divorcing in Scotland, don’t have any children under the age of 16 and you agree about how you will split your finances, you can apply for a ‘DIY’ divorce. This is done through your local sheriff court or courts and tribunals service.
If you have young children, or the divorce is more complicated, you will require an ‘ordinary’ divorce, which will go through the courts depending on whether it’s contested or not. When you and your spouse are agreed about the divorce, the process is easier.
Is legal separation right for me?
While the decision to end a marriage can be difficult, legal separation can offer a lot of advantages.
It can give you time to assess how you feel while you organise the expectations, responsibilities and financial elements of the separation in a legal separation agreement.
There’s no reason why separated spouses can’t decide to get back together. It’s also possible to remain separated as long as you wish, with no pressure to get divorced. This can be useful if neither of you wishes to get remarried, or perhaps if there are young children involved.
Often separation is simply a step towards divorce, with rules in place that will be taken into account when the divorce process starts. But it’s becoming more popular for couples who have split amicably to simply stay separated. In some cases, couples find staying separated financially beneficial.
However, if you do wish to get divorced, a legal separation agreement is a great way to make it easier down the line. You will have already had the difficult conversations about money, property and other assets, as well as any childcare or housing issues. Your legal separation agreement will be considered when you divorce, and any differences or changes will be registered.
Get legal advice
It’s always worth talking through your options with a legal expert to see if legal separation is right for you.
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