How does Legal Separation differ from Divorce?

Legal separation is where a married couple legally separate without getting divorced. During this legal process decisions regarding children (such as custody, visitation rights and maintenance payments) and financial issues (such as debt, mortgages and assets) are decided upon. It is really an official separation, going further than simply living apart but not as far as getting a divorce. After a legal separation a couple are still legally married but live separate lives. They are formally living apart and the courts may be used if there are any disputes.

In some ways a legal separation is like a divorce, with the most obvious reason being that the couple are not living together. If a couple have children similar arrangements need to be made as they would were they divorcing, either through agreement or through the courts. Where each spouse lives and who pays for it needs to be established as does who has access to shared funds or assets.

So, why do couples choose legal separation instead of just getting divorced? Some opt for this because they don’t like the idea of getting divorced, possibly for religious reasons or they don’t want the stigma of being divorced. Often couples use legal separation as a trial to see if they would like to stay together or divorce. It gives them time and space to make a decision. They may find that living apart makes them realise they miss each other and want things to return to the way they were, or they may want to be separated permanently. Sometimes legal separation leads to divorce, sometimes it leads to reconciliation and sometimes they remain separated without getting divorced.

Although some couples remain separated for good without divorcing, this is fairly rare. If they are not going to remain together as a couple most will prefer to cut their ties with each other. Another important consideration is that while still married, they are unable to marry anyone else.

So, is ‘legal’ separation necessary or can couples simply live separately without the legal process? Well, they can if they wish, but it is not always that simple. Whether that is preferable depends on an individual couple’s situation and preferences. Legal separation can be more complex in some ways due to the legal processes that must be gone through. But, on the other hand, it can also simplify things as they will both know where they stand on certain issues.

Beatrice Sareen (c)

Beatrice Sareen Divorce


Family Law in Partnership are specialist Family Law Solicitors.