If you and your partner would like to separate, but for one reason or another, you're not ready to consider filing for divorce, you might want to explore the option of a legal separation. What exactly is legal separation, and how can you file for it in the UK? This guide will provide an answer to that. In addition to this, we will also discuss:
The benefits and potential drawbacks of legal separation
Common reasons why couples may consider legal separation instead of divorce
The legal requirement for getting a legal separation.
The process of obtaining a legal separation in the UK
What is Legal Separation?
Also known as judicial separation, a legal situation is a process whereby married couples formally separate without going through the divorce process. This separation method is different from divorce in the sense that couples, despite their separation, are still legally married, and they are afforded the chance to either reconcile or file for formal divorce later on in the future.
Although couples that have been legally separated tend to live apart and sometimes together, they are still permitted to make legally binding arrangements together. The separation agreement often outlines Their terms and responsibilities, which the two parties must consent to and sign. For example, they can jointly make decisions on:
How finances will be managed
Children's custody and support
How property such as homes, vehicles, and other possessions will be divided
What will happen with their pensions, life insurance, or inheritance in case one of them passes away
If you and your partner are contemplating filing for a legal separation, your petition must include information such as:
Your legal name and that of your spouse
The legal name of your children (if there is any)
The time and place where the wedding took place.
The suggested parenting plan for the kids
Any financial obligations that both parties have agreed to, including any child support arrangements
Time and the place where you and your partner began living apart
Legal Separation vs. Divorce
While divorce and legal separation offer couples the chance to end their union either permanently or temporarily, the choice between legal separation vs divorce in the UK is a matter of personal preference influenced by several factors. Below are some reasons why legal separation is sometimes preferred over divorce.
Personal or religious beliefs: In some religions, divorce is heavily frowned upon; hence, couples may opt for legal separation as an alternative. This method allows them to be separated temporarily and then try to find a way to reconcile and get back together without going against their personal beliefs.
Cost of getting a divorce: The cost of getting a divorce in the UK can be a significant deterrent for couples, making legal separation a more appealing option. As of 2024, the standard fee to apply for a divorce is £593. This, combined with the high costs of hiring a solicitor, as well as additional expenses like mediation, financial agreements, and child custody arrangements, can make legal separation a more financially sensible choice.
Financial benefits: The various financial benefits legally separated couples enjoy are another reason why it makes sense to choose separation over divorce. Separated couples often enjoy certain joint benefits, such as health insurance and military spousal benefits. Additionally, they can file joint tax returns together, which often leads to lower tax liabilities.
Emotional benefits: Divorce is not only bad for finances; it also has strong psychological effects on the divorced couple and their children. Legal separation, on the other hand, allows individuals to take a step back from the marriage while still maintaining a legal bond with their partner and children. This approach can help reduce feelings of guilt, failure, or loss that often accompany divorce.
How to Legally Separate Without Divorce
1. Filing a Separation Petition
Filling out and submitting a Separation Petition (Form D8S) to the Family Court is the first step in getting legal separation. Although this form looks just like a typical divorce petition, the couple hoping to separate is not required to provide evidence that their marriage has irretrievably failed. Instead, they need to cite one of the following legal grounds:
Adultery: If you have strong evidence that your partner has had sexual relations with someone outside the marriage, this could be a valid ground to file for separation.
Unreasonable behaviour: Unreasonable behaviours like emotional and physical abuse, controlling behaviour, etc., can also be termed a legitimate ground for filing a separation petition.
Desertion: If your partner leaves the marriage without consent or a valid reason for a continuous period of at least two years, you could also file for legal separation based on abandonment.
Two years of separation (with consent): If you and your partner have separated for at least two years and agreed to the separation, this also constitutes another valid ground for filing the petition.
Five years of separation (without consent): If you and your partner have been living apart without divorce in the UK for at least five years, you don’t need your partner's approval before you file for separation.
2. Arrangements for Children and Finances
After filling out the D8S application form online and sending three copies, as instructed, to the address provided on the form, the next step is for you and your partner to draft a separation agreement form that will indicate the children's custody arrangement, financial support, and how the property will be divided if you eventually get a divorce. For example, the child custody section in the agreement may contain:
Schedules for custody and visits
Financial assistance (maintenance for children)
Decision-making authority over the child's upbringing (education, medical treatment, etc.)
3. Court Fee Payment
The final step in the application process is to pay your court fee. In the UK, the fee to be paid to the court is £365. For individuals who need help paying their court fees, the UK government offers a scheme called the Help with Fees program. This program allows eligible individuals to apply for a reduction or exemption from court fees based on their financial circumstances.
Note that if you paid the court fee within the last three months and were eligible for help at the time of payment, you can apply for a refund.
Advantages of Legal Separation
Legal separation offers several advantages for couples who aren't ready to fully dissolve their marriage.
1. Maintain Legal Benefits
Couples who opt for legal separation rather than outright divorce can continue to benefit from certain legal and financial protections. For example, they will still have rights to pensions, tax benefits, and possibly shared health insurance. For individuals reliant on their spouse’s income or shared assets, maintaining these benefits can be a significant advantage during separation.
2. Time for Reflection
As long as the dispute between the partners is not triggered by domestic violence or other serious issues, legal separation could provide couples with the opportunity to take a step back and reflect on their relationship. This separation period can help partners assess their feelings, have heart-to-heart discussions to clarify their needs, and ultimately evaluate whether they want to reconcile or proceed with a divorce.
3. Avoid the Stigma of Divorce
As we said earlier, divorce can sometimes be traumatic for partners as well as their children. If couples file for separation instead of divorce, they can avoid the societal stigma that often accompanies divorce, particularly in cultures or religious communities where divorce is heavily frowned upon.
Disadvantages of Legal Separation
One of the main downsides of legal separation is that you will still be legally married to your partner. That means that you will not be able to marry another person or get into a civil partnership unless you get a divorce.
Unlike divorce, legal separation doesn't end a relationship, which means that financial entanglements may continue. For example, you and your partner might still be responsible for shared debts or mortgage payments.
Unless a will specifically states otherwise, if one of the partners dies, the surviving partner may still be able to access the deceased estates.
Unlike divorce, legal separation will likely not give you the closure that you need because you will be stuck between being legally married and living alone and not being able to remarry.
Legal separation is described as a waste of time and money, especially if the separated couple eventually decides to proceed with a divorce.
Legal Considerations for Children and Finances
For couples that have kids, whenever they are processing their separation, it is essential that their separation agreement make special provisions for child custody, support, and visitation arrangements. Below are some of the key issues that they need to address:
Who the children will live with
How much time they will spend with the other parent
Financial support (child maintenance)
Decision-making for important aspects of the child's welfare
Another issue the couple must resolve is the division of joint assets, such as real estate, money, and investments. A separation agreement might specify how these assets are handled and allocated during the separation. This agreement can make the financial settlement procedure easier if the couple decides to divorce.
When to Seek Professional Help
While you can file for judicial separation in the UK yourself, it is also important that you seek professional help when faced with various complex issues during the process. Below are the areas where they can help you:
Complex Financial Situations: If you have a lot of assets, pensions, or debts, it is advisable to seek professional help. When you hire a family law solicitor, they are more than equipped to handle all these financial matters with expertise, ensuring that your personal and joint assets are fairly divided. This approach is very important, as their expertise will help avoid confusion and disputes that often follow complex financial separations.
Disputes Over Children or Property: You should also seek professional help if, during the separation, there is disagreement over child custody, property, or financial support. Hiring a family law solicitor for legal mediation over the issue will go a long way in helping you and your partner resolve conflicts in a way that is fair and legally sound.
Best Practices for a Smooth Separation
Maintain Open Communication: To ensure that the separation goes smoothly and unnecessary disputes don't ensue, it is essential that spouses continue to communicate courteously and clearly. Additionally, couples are advised to approach delicate subjects like financial matters and child custody with understanding and patience.
Document Everything: It is also imperative that all essential documents related to the separation, such as finances, child arrangements, and living conditions, be properly documented. The importance of having a written record includes:
It will serve as legal evidence if disputes arise either now or in the future.
It also allows both parties to refer back to the terms if needed
A well-documented arrangement will also come in handy if, soon, you and your spouse decide to modify parts of the agreements due to changes in circumstances.
Legal and Regulatory Considerations
The Act governing divorce and legal separation in the UK and Wales is the Matrimonial Causes Act of 1973. This act gives couples the power to seek judicial separation on valid grounds, such as adultery, unreasonable behaviour, and many more, without dissolving their marriage. The Act encourages the creation of separation agreements to outline financial and child arrangements. Additionally, the act offers a no-fault option for couples wishing to separate amicably.
The act also allows couples to file for separation jointly or separately. For instance, a couple might be allowed to file for separation if they are victims of domestic violence or if their partner doesn’t want to get separated.
Couples can also apply for consent or child arrangement orders during their separation to formalise agreements regarding finances and children. These court orders are legally enforceable and protect both parties.
FAQs
How do I apply for legal separation in the UK?
Applying for legal separation in the UK is easy and can be filled with your spouse or alone. All you have to do is complete Form D8S and submit it to the Family Court. The court fee for legal separation is £365. Also, if you don’t have the financial capacity to pay for it, you can request help, provided you meet the eligibility criteria.
Can I get legally separated without getting divorced?
Yes, the whole purpose of legal separation is to reduce the rate at which people divorce. A time out between the couple is believed to allow them to reflect on their relationship and make informed decisions about their future.
What are the benefits of legal separation over divorce?
Legal separation has numerous benefits, including the ability of the couple to still maintain their pension rights and tax benefits while having time to reflect on the future of the marriage.
Will a legal separation affect my pension rights?
No, legal separation will still allow you to retain pension rights, unlike divorce, where pension benefits may be affected.
Can I remarry if I am legally separated?
No, you cannot remarry while legally separated, as you are still considered legally married. Instead, you must divorce your current partner before you will be allowed to marry someone else.
Conclusion
For couples who do not want to resort to divorce, legal separation offers them the time and space needed to reflect on and resolve important issues affecting their relationship. If you are in the UK and considering this option, you must read through this guide to fully grasp the legal implications and processes involved.
That said, if you need personalised advice or help drafting a separation agreement UK that is tailored to your specific marital situation, Lawhive’s family law solicitors and experts can help.