Consultant solicitor Shashi Sachdeva, in our leading Family team, explains the differences between separation and divorce.
I am often asked by clients whether they should divorce or whether they should separate. The fundamental differences between the two are extremely important and are set out below.
When one divorces, the marriage is terminated and both spouses are free to remarry. With separation, the marriage is not terminated and therefore neither spouse is free to remarry. There is however another and possibly a more important distinction between divorce and separation which relates to the financial implications of both.
The financial situation can be formally resolved at the time of divorce or even after the divorce. In order to ensure any financial agreement reached is binding, a Judge will have to approve the agreement reached. Once the agreement has been approved, the agreement is binding and both spouses will have financial certainty.
In separation, a couple can not reach a binding financial agreement. They can enter into a Deed of Separation also known as a Separation Contract but a Judge does not see this Deed/Contract. The agreement is therefore not binding and it does not automatically become binding either, in fact it may not be binding at all. Either or both spouses could change their mind and could ask for more capital and/or maintenance at the time of divorce.
A further disadvantage between entering into a Deed of Separation and divorce is in relation to costs. When a Deed of Separation is entered into, on the basis that legal advice is taken, legal fees are incurred. The couple will then incur further legal fees when instructing a solicitor to act for them in their divorce and when seeking legal advice and assistance in reaching a financial agreement. This means that potentially there could be a duplication of legal costs.
If a spouse is sure that the marriage has irretrievably broken down and would like financial certainty then s/he should consider commencing divorce proceedings as opposed to simply separating. There could however be other considerations that should be taken into account and I always consider these too.
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This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.