Legal Separation to Divorce

In Divorce

If you and your spouse haven't lived together for a number of years, you may be able to use legal separation as grounds for divorce.

What is legal separation? 

For those who are considering ending their marriage, a legal separation can be a good interim option. It gives you time to consider whether you do want to divorce and how you’ll go about it. Currently, the government are encouraging separation and mediation, as by organising a separation agreement ahead of time, and often you do not need to go to court, which saves on time and saves you the court hearing fees.

In order to be classified as separated, you need to live separately.

What is a separation agreement?

A separation agreement is a financial document that allows you and your spouse to fairly divide your assets and responsibilities. It records what you have both agreed to, and then can be referred to later if you do decide to divorce. It can include things like mortgage payments or bills until you move, how the money from the sale of a home will be split, how pensions and bank accounts will be divided and details like where children will live and when they will see the other spouse.

You can add any details you want to the agreement and it will be unique to the couple. A separation agreement is a good idea because it ties both spouses into a contract at the beginning of their separation. If years pass before the divorce, one spouse could easily spend money in certain accounts so that it can’t be accessed by the other, or perhaps sell shared property or shares. A separation agreement takes account of everything right from the beginning and protects you both in the long run.

It is recommended that you hire a solicitor to ensure the separation agreement is legally binding.

How many years do we need to be separated?

You have to have been married for at least a year before you can get divorced, but there is no reason you can’t separate before this. If you have 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 does not consent, you will 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 as long as they do not add up to more than six months, and you have been apart for two years altogether, the separation stands.

What’s the difference between legal separation and divorce?

Whilst legal separation and divorce can look quite similar, (especially with a separation agreement in place to organise who gets what) there are definitive differences.

Financially, legal separation does not offer as much protection from your spouse. Legally, when separated but jointly owning 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.
Moving on can be difficult if your finances are still connected, for example with both names on the mortgage, one partner may be dependent on the other to pay, even if they are not living there. If one partner attempts to buy another property, they will be subject to capital gains tax.

Similarly, with shared accounts, there is a risk, not only of one partner spending more than appropriate (a separation agreement should stop this) but the connection between credit ratings. It is also worth considering that if you have no updated will in place, separated spouses still have the right to claim on the other’s estate.

Often separation is simply a step towards divorce, with rules in place that will be taken into account when the divorce process starts. However, it is becoming more popular for couples who have split amicably to simply stay separated. In some cases, couples find staying separated in financially beneficial for them.

It’s always worth talking through your options with your solicitor to ensure separation is right for you.

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 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 does not consent to the divorce, but you have 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 have 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 does not consent, you need to have been separated for two years.

If you are divorcing in Scotland, don’t have any children under the age of 16 and agree about how you will split your finances, you are able to 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 is contested or not. As previously mentioned, when both partners are agreed about the divorce, the process is easier.

Is legal separation right for me?

Whilst the decision to end a marriage can be difficult, legal separation offers a lot of advantages. It can give the couple time to assess how they feel and will organise the expectations, responsibilities and financial elements of the relationship in a legal separation agreement.

There is no reason that 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.

However, if you do wish to progress to divorce, 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.

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