Deciding how to end or alter the terms of a marriage can be complex, so it’s essential to understand the differences between divorce and separation. Being aware of these distinctions can help you make informed choices about the best path for your circumstances.
Key Takeaways
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Divorce legally ends a marriage or civil partnership, allowing both parties to remarry and resolve finances fully, including pensions and inheritance.
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Separation allows couples to live apart while remaining legally married, offering flexibility and potential financial or practical benefits with the support of a separation agreement.
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Howell Jones’ experienced Surrey family law solicitors offer clear, practical guidance and a free initial telephone discussion to help you decide the best option for your circumstances.
Divorce
In brief, divorce or dissolution proceedings legally terminate a marriage or civil partnership entirely, and dissolve the legal ties a couple have to each other in law.
A couple applying for a divorce or dissolution of their relationship will need to prove to the court that the relationship has irretrievably broken down. The proceedings need to be issued with the family court at HMCTS.
After the grant of the final order in the divorce or dissolution proceedings, the couple then each become single in law and is free to remarry again.
A divorce or dissolution also affects inheritance under a will, and any gift left to your spouse in your will made before the divorce will fail and updated wills need to be made.
A formal divorce or dissolution also enables the parties to have a “clean break” in respect of the financial assets between them by way of a court order, dealing with pensions, lump sums, properties, and maintenance (periodical payments).
Separation
Firstly, it is important to understand that a couple can choose to separate without formalising their separation. Alternatively they can formalise the separation via the court by issuing judicial separation proceedings. However, it is wise to take advice upon separation and consider having a separation agreement prepared, even if the parties are not filing formal proceedings for a judicial separation order.
When parties separate, (whether by formal Judicial separation or not), this allows the parties to live apart without terminating the marriage legally, and the parties are not free to remarry and will remain each other’s “next of kin”. The parties remain legally married to each other and their marital status is not altered.
When lodging an application for a Judicial separation there is no requirement to show proof to the court that the marriage has irretrievably broken down.
When a couple separates without formalising through the court, they will need to agree how they share the financial assets between them. Most couples benefit from having a separation agreement and the terms of agreement can be referred to should divorce proceedings follow at a later date. A separation agreement setting out the terms of financial settlement can also assist with exemption of stamp duty on property transactions in some circumstances if you don’t yet have a financial order in the divorce.
In Judicial separation proceedings the court can make a financial order but pension sharing orders are not available to the parties.
The benefits of separating instead of divorcing, may include tax advantages, shared health insurance and benefitting from a widow/widower’s pension upon the other party’s death.
You may consider you are not ready to file proceedings for a divorce and need a separation agreement to cover an interim period to address matters such as child arrangements, payments of mortgage, sale or transfer of a property, with the plan to issue divorce proceedings at a later date.
It is also worth noting that a couple cannot file proceedings for a divorce or dissolution order until they have been married for one year, and a separation agreement can address their arrangements until they can file proceedings for a divorce or dissolution.
And remember: contrary to popular belief, there is no such thing as a common law marriage – you’re either legally married or you’re not.
If you would like clear, practical advice on whether divorce or separation is right for you, our experienced Surrey family law team is here to help. Contact Howell Jones Surrey solicitors today for a free initial telephone discussion with one of our expert family law solicitors.
