Legal Separation or Divorce – Which is best for us?

A legal separation agreement is very similar to a divorce as it allows you to live apart whilst remaining married. More often, couples chose to separate informally without going to the trouble of recording their separation with the court and paying court and legal fees.  Legal separation (legal term) is the process of going through the Courts to formalise your separation.   It is a voluntary agreement you can make when you want to stop living together as a couple.  It sets out the arrangements you want to make for things like:

  • children
  • finances
  • property

A legal separation shouldn’t be confused with a separation agreement, otherwise known as a Consent Order or Clean Break Order, which is a written document that details how you intend to split your assets and debts on divorce.

Most people don’t bother legally separating.  They choose instead to separate without recording it with the court or go straight to divorce proceedings. There are, however, some special reasons that may give you a reason to take the route of  legal separation:

Arguments for a legal separation

  • Your religious beliefs do not agree with divorce
  • You’ve been married for under a year
  • you agree that you don’t have to live together, so your ex-partner (husband, wife or civil partner) can’t allege you’ve deserted them and vice versa
  • it shows you both consider the relationship to have ended and the date it ended
  • it is flexible – you can decide what you’d like to include
  • if you stick to it, an agreement can take the heat out of the breakdown of the relationship and means you both know where you stand
  • it gives you both clarity and certainty
  • Although they aren’t technically legally binding, agreements that have been properly and fairly negotiated will be upheld by the court if challenged

Arguments against a legal separation

  • it’s not easy to enforce
  • it can only be changed if both of you agree to the changes
  • a court might disregard some or all of its contents if you go on to divorce or dissolve your civil partnership – it’s not the final word

To be legally separated, you must file a separation petition at court – the same form as a divorce petition but you pay a court fee of £365 instead of £550 (for divorce). If you wish to divorce after you have legally separated you will have to submit a divorce petition (the same document again) and pay an additional court fee of £550.  You cannot offset one cost against the other.

Below are some common questions to help you decide whether a legal separation is the right option for you.

Will a legal separation agreement be legally binding?

No. Any financial arrangements made within the legal separation agreement are not legally binding. Similar to a prenup, a legal separation agreement isn’t enforceable in court. However, legal separation agreements and prenups will be considered by the judge if you do end up in a dispute.

It is often thought that legal separation agreements end future claims against each other. This is NOT true. You will still have the same financial responsibilities as you had whilst married or in a civil partnership. A legal separation is more of a verbal contract between the two of you confirmed in writing. To get a legally enforceable document that ends all future claims, you need a divorce with a consent order.

How much does it cost?

The courts in England and Wales charge £365 for you to file a legal separation agreement. It’s the same form you would need to fill in if you were getting a divorce or ending a civil partnership. There may be additional legal costs on top of the court fees too. As it’s still not legally binding, even if a solicitor writes it up, it is worth considering writing the agreement yourself.  Call 0800 177 7702 for advice.

How long does it take?

Your documents will need to be processed by the courts exactly as a divorce petition. It can take as long as 3 to 4 months for your legal separation to go through the court system.

It is best to seek proper legal advice before heading down the route of a legal separation agreement as there are better options available. Call 0800 177 7702 for further advice.

Legal Separation or Divorce – Which is best for us? was last modified: August 8th, 2019 by John Fuller

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