Differences Between Divorce and Separation Explained

According to the Office of National Statistics, in 2023, in England and Wales, the divorce rate reached its lowest level since 1971 at just 34.2%. Nevertheless, it still means 80,057 couples decided to start divorce proceedings. However, not all couples whose relationship has broken-down chose to divorce, others might choose to separate instead. Both are traumatic events for the whole family and have implications that span far beyond the family unit. In this blog we will explain why despite similarities in terms of procedure, childcare, financial and living arrangements, both procedures are in fact very different. More often that not couples going through a separation or a divorce require legal advice.

The Legal Differences Between Separation and Divorce

Even though a separation or a divorce signify the breakdown of a couple’s relationship, both have different legal implications. First of all, it is important to differentiate between the different types of separation.

The Informal Separation

An informal separation occurs when a couple (married or unmarried) have decided they can no-longer live together because there are irreconcilable differences between both partners. However, there is no formal agreement between them, instead there is an informal agreement whereby they agree on financial support, living arrangements, and childcare. The absence of legal procedure means a married couple choosing an informal separation remains married despite living separate lives.

The Judicial Separation

As with an informal separation, a judicial separation occurs when the couple has decided they cannot live together anymore. As with a divorce, it must be pronounced by a judge It is often used where parties have religious objections to Divorce or have not been married for 12 months as required by a divorce application can be made – it can also be to preserve pension rights. It is often a step before the divorce or can be used by couples who want to separate without going through a divorce.

However, as with an informal separation, a married couple who opts for a judicial separation remains married and as such, cannot remarry. It must also be noted that despite there no-longer being any needs to justify grounds for a divorce following the introduction of the no-fault divorce in April 2022, couples wanting a judicial separation must justify there are grounds for it to happen.

What is a Divorce?

A divorce is the formal legal process that dissolves a couple’s marriage; therefore, it is only applicable to married couples whereas married and unmarried couples can separate. Following the finalisation of the divorce process both partners are free to remarry; this would not be the case if they had chosen to separate. One of the main differences, between a separation and a divorce is that since the introduction of the No-Fault Divorce, the couple is no longer required to justify the grounds on which they want to divorce.

Differences in Procedure

Unlike an informal separation, a judicial separation and a divorce must both be pronounced by a judge. However, these are the only similarities in terms of procedure. If a couple is applying for a divorce, a period of 20 weeks is allocated for them to reflect and if the case may be, reconcile. After this period, the judge can pronounce a Conditional Divorce Order whereby it is agreed the couple’s marriage has broken down. 6 weeks later, an application can be made for a Final Divorce Order, officially ending the marriage.

In the case of a judicial separation, you must apply for a judicial separation by submitting an application to Court. This means, that in principle at least, both members of the couple don’t need to agree on whether or not to separate. Moreover, a couple who engages in this process must be aware that they keep marital rights. However, as with a divorce, the court can determine financial support, living arrangements and child arrangements.

Financial Implications of a divorce or a Separation

A couple’s financial situation will be affected whether they have opted for a divorce or a separation. This is because in both cases, the procedure incurs a cost. Since 2023, the costs of a divorce is set at £593 whereas that of a separation is set at £365 to which it is necessary to add solicitors’ fees. That is why at Eatons Solicitors’, we recommend that any couple wanting to separate, or divorce seek legal advice before going ahead with the procedure.

Besides the expenses incurred during the procedure, it is important to note that following a divorce or separation each partner will need to regain financial independence. They will, for example, need to rebuild their credit score, and take into consideration that running two households is more difficult than running one. Moreover, in both cases, one of the partners (usually the highest earner) must pay maintenance to help raise children (child-support) or prevent one the partners from falling into financial hardship.

Furthermore, unless a prenuptial agreement is signed, the assets accumulated during the marriage or relationship are divided based on a fair assessment. This means both partners will benefit from joint investment portfolios, joint savings accounts, and joint pensions. If the couple own a property, then either it is sold and the proceeds are divided or one of the partners can buy the other one out.

Child Arrangements

Another question that arises during a separation or divorce is that of children and living arrangements. While child maintenance is calculated based on the parents’ income, child and living arrangements are often more complicated to deal with but are worked out along the same principles. This is because if parents can’t agree the judge must determine in the children’s best interest and consider that both parents should retain their responsibilities, unless exceptional circumstances prevent them from doing so. This means they are both responsible for taking the important decisions in the children’s lives. In this respect, child-custody arrangements made during a separation or divorce procedure are identical. It is only in the case of an informal separation that child arrangements might be different.

Different yet Similar

Despite many differences such as the financial implications, and the couple’s legal status, a separation is very similar to a divorce, particularly in the case of a judicial separation except that a separation does not end a marriage or civil partnership. Get in touch with the family law team at Eatons Solicitors to get further legal advice.