We are often approached by clients asking to ‘separate’ from their spouse or partner to which we reply: “Do you mean separate or do you mean divorce?” Divorce and separation are two different things. Here are the differences and what they mean legally…Claire Holland – Holland Family Law
The key difference between a divorce and separation is that a divorce officially ends a marriage, whereas a judicial separation does not. Knowing the difference will help you choose the right option for you. While a judicial separation is rare, you might find it preferable to divorce.
It could be the case that your religious or cultural beliefs mean that you would prefer not to divorce. Or it could be that your spouse has developed a medical condition, such as dementia, and divorce seems excessive.
What is a divorce?
A divorce legally ends your marriage. However, you must have been married for at least one-year before you can start divorce proceedings. Under current laws, you must be able to prove that your marriage has broken down irretrievably.
On your divorce petition, you must state one of the ‘five facts of divorce’, which include:
- Unreasonable behaviour.
- Two years’ separation and you both agree to the divorce.
- Five years’ separation.
What is judicial separation?
A judicial separation is when you ‘legally’ separate from your spouse, but your marriage isn’t ended. Applying for a judicial separation is not conditional on how long you have been married, so you can apply at any time even if you have been married for less than a year.
There’s also no need to prove that your marriage has broken down irretrievably. However, you will need to specify on what grounds you are seeking a judicial separation – these are the same grounds as the five facts of divorce.
The similarities and differences between divorce and separation
The key differences between the two are:
- A divorce legally ends a marriage, while a judicial separation does not
- after getting a divorce, but not after a judicial separation
- You have to prove that your marriage has irretrievably broken down to get divorced, but not with a judicial separation
- You can get a judicial separation at any point, but with a divorce you must wait until you’ve been married for at least one year
- The Court cannot exercise its powers to divide a pension pot with a judicial separation, while it can with a divorce
Other than these differences, the implication of a separation or divorce are similar in that you no longer have to live together, the Court can decide how your assets are divided (excluding pensions) and if your spouse is named as a beneficiary on your Will, the legacy will fail, unless you make a new Will stating that you want them to be a beneficiary.