Reviewed by Julian Hawkhead, senior partner, Stowe Family Law

Man and woman sit with their backs to each other

Separation is a common alternative to divorce, at least in the short term. A trial separation may be a good option when you aren't sure whether your relationship is truly over. But you should also be aware of the drawbacks separation can have and the need to address key issues with a proper separation agreement

Trial separation or divorce?

When a relationship goes wrong, you can choose to separate rather than immediately applying for a divorce. You can separate straight away, without needing to involve the court or go through a lengthy divorce process.

A trial separation gives you both breathing space to think about whether you do want a divorce or should try to make things better, for example by trying relationship counselling. It's a good idea to set clear ground rules, agreeing what is acceptable while you are separated and how long the trial separation will last. Otherwise, separation can lead to increased conflict and a failure to address the underlying problems.

Some couples see separation as a stepping-stone to divorce. For example, you might separate with the intention of later using two years' separation as grounds for divorce. But if your marriage has irretrievably broken down, it may be better to recognise this and sort things out properly and finally. Separation can cause problems if one spouse later refuses to consent to the divorce, demands an advantageous financial settlement in exchange, or disappears.

Of course, neither of you is able to remarry while you are separated. You may feel that remaining married stops you moving on with your life or starting a new relationship. Getting divorced allows you to sort out your financial arrangements and what will happen to the children in a more final way.

From 6 April 2022 (or perhaps later), divorce law will change. Divorce will be on a 'no-fault' basis, to encourage amicable proceedings. The whole divorce process will become much simpler and easier.

Separation agreements

If you are separating rather than divorcing, you should still sort out practical issues: who will stay in the family home, what your financial arrangements will be and what will be done about any children you have.

Simply walking out on your spouse without any agreement is not a good idea, as it may mean your spouse has to take legal action (for example, to get financial support from you). You may decide to organise things informally, but this also can have serious drawbacks: for example, you both remain liable for any joint debts.

A better approach is to have a separation agreement (often drawn up as a formal 'deed of separation'). This should cover all the key issues, including:

  • sorting out any joint accounts or joint borrowings;
  • deciding who will live in the family home and perhaps splitting ownership;
  • agreeing who the children will live with and what contact the other parent will have;
  • agreeing any financial support to be provided by one spouse to the other;
  • sorting out any other financial issues (for example, any life insurance policies);
  • deciding whether you should draw up new wills.

It may be possible to overturn a separation agreement later if it isn't fair. But if you and your spouse both take legal advice and reach a reasonable agreement, then it is more likely that the court would uphold the agreement.

Judicial separation

Separation agreements are sometimes - wrongly - referred to as legal separations. You continue to be legally married until you divorce, no matter how long you are separated or whether you have drawn up a separation agreement.

You can decide to have your separation legally recognised with a decree of judicial separation. Although you remain married, judicial separation is similar to divorce and means that you can reach a legally binding financial settlement. You cannot, however, remarry unless you do divorce.

Judicial separation is rare, as there are few circumstances where judicial separation is preferable to divorce. Judicial separation is most common if the marriage has lasted less than a year (which means that divorce is not yet possible), or if either of you has strong religious objections to divorce or has no wish to legally dissolve the marriage. In some circumstances, annulment may be another option.

Separation problems

Separation is a good option for some couples. As long as you have a fair separation agreement, separation can let you live largely separate lives without needing to involve the court. But there are circumstances where you may need to consider legal action.

If your spouse walks out on you without any kind of agreement, you may want to consult a lawyer. If you are financially dependent on your spouse, your lawyer can help ensure that you get the financial support you are entitled to. Even if you are happy to be on your own and don't want financial support, it may be best to sort things out now.

If you or your spouse have international connections - for example, if you spend part of your time living in another country - you should take legal advice straight away. Unless you involve the UK courts, there is a risk that your spouse may be able to file for divorce in another country (to your disadvantage) or take your children overseas.

Finally, you may need to take advice if you continue to have problems after separating: for example, if your spouse harasses you or fails to comply with your separation agreement.

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