When relationships break down, one of the most important decisions couples face is whether to divorce or separate.
While the terms are sometimes used interchangeably, divorce and separation are legally and practically very different in the UK. Understanding these differences can help individuals and families make more informed decisions as to whether they should choose to divorce or separate.
Divorce or separate: What is divorce?
Divorce is the legal process that ends a marriage. The key features of divorce are:
- The grant of the Final Order at the end of the divorce process marks the legal end of the marriage.
- A divorce allows for a legally binding financial order. This states how assets and pensions will be divided and how much spousal maintenance will be paid and by whom.
- Divorce allows you to opt for a ‘clean break’. This ensures no future financial claims can be made by either party.
- You are free to marry someone else.
In April 2022, the UK introduced no-fault divorce. This means neither spouse needs to assign blame for the breakdown of the marriage; a simple statement that the marriage has irretrievably broken down is now sufficient.
Divorce or separate: What is separation?
Separation means that a couple chooses to live apart, either temporarily or permanently. Some couples choose to separate first to allow time for reflection or preparation before deciding whether they should proceed with a divorce.
In the UK there are two types of separation:
- Informal separation: You simply agree to live apart. This doesn’t involve the court and, as such, carries no formal legal standing.
- Legal separation (or judicial separation). This is a formal process through the courts that recognises your separation without ending the marriage.  It is less common, but may be suitable for those with religious or personal objections to divorce.
The key features of a separation are:
- You are still legally married in the eyes of the law.
- You will likely still need to make formal financial agreements.
- Unlike a divorce, a ‘clean break’ is not available.
- You cannot marry someone else unless you divorce.
Divorce or separate: What do you need to consider to make the best decision?
The decision as to whether you should divorce or separate is again a personal one and will depend entirely on your emotional, financial, and legal circumstances. However, here are some areas you may want to consider when making your decision.
Firstly, where do you stand emotionally?
Are you ready to draw a final line under your marriage? Divorce will legally end your marriage whereas if you’re still not fully decided, separation could offer space to reflect on whether this is what you want to do. It also leaves you with the option to reconcile.
Your decision will also have a huge emotional impact on your children so you need to consider how they will be impacted and how they will be cared for after you divorce or separate. The courts do prefer informal agreements when it comes to children but they will intervene if necessary and this is sometimes more straightforward to administer in a divorce.
You also need to think about your personal beliefs and values. Some choose separation over divorce for religious or moral reasons.
Linked to this is the question of trust. Do you trust your partner not to pursue you for a larger share of your assets or a larger maintenance payment in the future? If you are concerned this may be an issue, divorce could be a better option.
You should also consider the financial implications. Both options can involve dividing property, savings, and pensions and either party may be entitled to maintenance payments whether they divorce or separate. However, remaining married – i.e. separating – may preserve certain benefits like pension rights.
Tax is another financial consideration. There can be significant tax considerations, depending of course on the assets involved and both parties’ circumstances. For some, it may make more sense to stay married but for others, opting for a separation – even if only in the short term – could make it more costly.
Decisions will also need to be made on living arrangements. Who will stay in the marital home? Will you sell your home? Or will you live separately but under one roof? There are different implications depending on whether you choose to divorce or separate.
Finally there is the question of cost. Some people choose separation over divorce because it means they avoid the legal costs of a divorce. However, it must be remembered that executed without due care and attention (and professional advice), a separation could end up costing much more in the long run if the initial informal agreements made are challenged and you find they are unenforceable.
What are the risks of not separating rather than divorcing?
Again, the decision to divorce will always be an intensely personal one. However, there are benefits from a financial perspective.
As divorce is a legal process, it offers certainty as well as finality. All agreements made can be formally approved in a court order which remains binding for both parties. Financial agreements made during a separation do not have the same force and remain open to challenge in the future.
Divorce also adds much welcome clarity. If you initially separate then decide to divorce years later, your financial circumstances could well have changed. This could lead to protracted arguments that could have been avoided by divorcing immediately. This is made more complicated by the UK’s views on marital assets.
Even if wealth has been accrued in new bank accounts or new properties have been bought during the period of separation, they would still be treated as martial assets. This means they would potentially be subject to division once you decide to divorce.
However, it should also be noted that legally ending your marriage or civil partnership with a Final Order will not automatically cut your financial ties to your ex. You must also apply for a legally binding Consent Order. This will set out the financial arrangements you have reached and can be used to quell any future claims, including claims made after your death, to your finances and assets. This order can only be put in place following a divorce.
Choosing between divorce and separation is not easy. If you or one of your clients is facing this decision and would like to talk through their situation with one of our experienced family barrister, please contact us today.