Is separation easier than divorce when your marriage is over?

When a marriage is over, the idea of a separation can seem easier than getting divorced or dissolving a civil partnership. But is it ever a better option? Sarah Evans, Head of Coodes Solicitors’ Family team looks at the issue.

Updated January 2019.

Clients often come to us saying they would like to separate from a spouse but don’t want to get divorced. If you are in this situation, what are your options? There is not, in fact, a single legal definition for separation. If you want to formalise your separation without getting divorced you can choose to have a deed of separation or a judicial separation. Alternatively, you may decide on something more informal.

Informal separation

This is when a relationship breaks down and the couple just agrees to live apart. People sometimes do this on a trial basis, in the hope that they may reconcile their differences and get back together. In other situations, they are just not ready to formalise arrangements. In an informal separation, the couple would just sort out the finances between themselves without setting out the terms of their agreement.

Many couples choose to separate and then divorce later on. If you have been living apart continually for more than two years you could then use this as the basis of your divorce, as long as you both agree. You can legally divorce from your spouse without his or her consent if you have been living separately for more than five years.

Deed of separation

A deed of separation – sometimes called a separation agreement – sets out financial terms, which you agree yourselves, through mediation or via a solicitor. It could also cover child maintenance and arrangements for your children.

When entering into a Separation Agreement it is important to be aware that in future divorce proceedings the Court is not bound by the terms of the agreement and so it can be over turned. In practice, however, it will usually be upheld if the terms have been carefully negotiated, the parties have fully disclosed their financial circumstances and had independent legal advice.

A separation deed is not something we generally advise to clients, because it is risky, but it can be an option for people who cannot divorce, perhaps for religious reasons.

Judicial separation

If you have been married for less than a year, you are not entitled to divorce but can get a judicial separation. While it does not legally end a marriage, the process of getting a judicial separation is similar to divorce proceedings. Judicial separation is very rare, but can sometimes be the only option for couples who cannot continue with a marriage but are unable to divorce.

Interestingly, many people imagine that separation is less stressful than a divorce but I would encourage them to think again. Divorce provides more certainty and is less risky, while separation can cause far more stress further down the line.

For more information or advice on marital or relationship legal issues contact Sarah Evans in the Family Team at Coodes Solicitors on 0800 328 3282 or sarah.evans@coodes.co.uk