HomeLegal Separation – When divorce is not an optionSeparationLegal Separation – When divorce is not an option

Legal Separation – When divorce is not an option

For Jada Pinkett Smith and Will Smith divorce is not an option. In a recent interview she revealed that she and her husband Will Smith have been living “completely separate lives” since 2016 and were “figuring out” their marriage. For some couples a legal separation (legally known as Judicial Separation) is preferable to divorce or dissolution for moral, personal, cultural, or religious reasons.

In 2006 Will Smith explained why divorce was not an option for him saying “With Jada, I stood up in front of God and said: ‘Til death do us part,’”. “So there are two possible outcomes. One, we are going to be together ‘til death, or two, I am dead.”

What is a legal separation?

A legal separation is an alternative court process to divorce or dissolution. It formalises a couple’s separation which allows them to separate and live apart, without divorcing or ending a civil partnership. A legal (Judicial) Separation also allows a couple to separate their finances and apply to the Court for financial orders.

Crucially unlike divorce or dissolution, you do not have to state that your marriage or civil partnership has irretrievably broken down in order to legally separate. A couple simply need to state that they seek a judicial separation. This is important for couples who do not believe in divorce.

What are the benefits of a legal separation? 

The benefits are:

  • It can be applied anytime after marriage or civil partnership, unlike divorce or dissolution where you must wait a minimum of 12 months.
  • It is a legal separation sanctioned by the Court.
  • It allows a couple time and space to decide what they want from their relationship without obliging them to cohabit.
  • It allows a couple to remain in each other’s lives and have an emotional commitment to each other.
  • It allows a couple to legally live their separate lives.
  • A legal separation is less permanent as it can be reversed whereas a divorce or dissolution cannot.
  • It allows a couple to continue referring to each other as their spouse/civil partner.
  • It maintains certain benefits such as health insurance coverage.
  • It allows a Court to make financial and property orders in the same way as in divorce/dissolution proceedings without ending the marriage or civil partnership. 

Is a legal separation preferable to divorce?

They are different and each has their advantages and disadvantages depending on what you want to achieve.

The main differences between divorce and separation are:

  • Legal separation removes the legal obligation to live together, whereas divorce or dissolution ends the marriage or civil partnership completely.
  • Once your marriage or civil partnership has ended by divorce or dissolution you are free to remarry or enter into a civil partnership with another person. With Judicial Separation you remain married and therefore cannot marry another person or enter into a civil partnership.
  • If you wish to end your marriage or civil partnership, you must wait for at least one year before commencing proceedings for divorce or dissolution. With Judicial Separation you can apply at any time after the marriage.
  • While the divorce process involves two Orders from the Court – a Conditional Order and a Final Divorce Order, Judicial Separation involves just requires one Order called a Judicial Separation Order which provides for the separation of the parties to the marriage.
  • A Court can share a pension (Pension Sharing Order) as part of the financial proceedings related to a divorce, but they cannot exercise these powers for Judicial Separation.

What are the 3 types of separation?

The 3 types of separation are:

  • Legal Separation by way of Judicial Separation proceedings and sanctioned by the Court.
  • Formal separation by entering into a Separation Agreement.
  • Informal separation by simply agreeing to live apart without any legal proceedings or formal agreement.

What is the difference between legal separation and a Separation Agreement?

Legal separation involves making an application to the Court to legally remove an obligation for a couple who are married or in a civil partnership to live together. It is a separation sanctioned by a Court once the Judicial Separation Order is made.

In contrast a Separation Agreement is a written contract made between a couple only defining how their joint assets and responsibilities will be divided between them when their relationship breaks down. Couples who are in a cohabiting relationship can also enter into an Agreement. There is no legal requirement to enter into a Separation Agreement, but entering into one provides some reassurance and clarity.

Is entering into a Separation Agreement a good idea?

The advantages of a Separation Agreement are:

  • It gives a couple time to think before making any important decisions.
  • It provides evidence and clarity as to the financial arrangements agreed between the couple, as it can be difficult to prove the terms of any verbal agreement reached.
  • Whilst not as binding as a Judicial Separation Order, a Separation Agreement offers the same legal protection as any other contract.
  • It records an agreement that you do not have to live together.
  • It demonstrates that the couple considers the relationship to have ended or is ending, and the date it ended.
  • An agreement can make separation easier for children as a couple is choosing to agree arrangements between themselves rather than resort to legal proceedings.
  • It is flexible – a couple are free to decide what they want to include in a Separation Agreement.
  • An agreement can remove the conflict out of the breakdown of the relationship as both parties know where they stand emotionally and financially.
  • It makes any subsequent divorce proceedings easier as arrangements have been agreed in advance.
  • A court will uphold a Separation Agreement if it was properly and fairly negotiated.

Frequently asked questions about legal separation

How long does legal separation take?

The judicial separation process takes a minimum of 26 weeks.

Do you need a solicitor to become legally separated ?

Since the introduction of the no-fault divorce law in 2022, it is now far easier to end a marriage or civil partnership or become legally separated without a lawyer. There is no legal requirement to have a lawyer to start proceedings for a legal separation.

To apply for your judicial separation, you will need your original marriage/civil partnership certificate or a certified copy (a photocopy will not be accepted). If your certificate is not written in English, an approved translation is required. An application can be made by one party or jointly.

The current Court fee for filing an application for judicial separation is £365. We can assist you with applying for a legal separation and details of our services can be found here.

Does separated mean single?

You are still married if you are legally (judicially) separated. Accordingly, your legal status is separated not single.

Do you have to divorce after separation? 

There is no requirement to divorce after separation. As in the case of Jada Pinkett Smith and Will Smith you can choose to remain married but separated indefinitely.

Does judicial separation end a marriage?

Judicial separation does not end a marriage. Only divorce or dissolution ends a marriage or civil partnership respectively. The legal effect of Judicial Separation Order is to remove the legal obligation to live together.

Is judicial separation binding?

Under judicial separation, the court is able to make financial and property orders in the same way as in divorce/dissolution proceedings.

The Court can make the following financial orders: lump sum order, property adjustment order, periodical payments order, but, under a judicial separation, the Court does not have the power to make pension sharing order, only a pension attachment order.

Financial matters can be resolved by way of a financial agreement which can be incorporated into a Consent Order, or by an Order of the Court. Once either a Consent Order is approved by the Court, or an Order is made it is legally binding. 

Can I get divorced after being legally separated?

Yes. If you have a Judicial Separation Order, you can later apply for a divorce if you consider your marriage to have irretrievably broken down and you have been married for at least 12 months. 

What happens if your husband/wife dies, and you are separated?

If you do not want your husband/wife to inherit from you upon your death, you need to make a new Will as soon as possible after you receive the Judicial Separation Order to ensure your wishes are carried out in the event of your death.

If one of the couple dies without leaving a Will, their property would devolve as if the other person to the marriage/civil partnership had deceased them, meaning that the surviving spouse/civil partner will not inherit.




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