Divorce vs separation

The three options

When a marriage is in difficulty, you have three main choices:

Divorce – legally ends your marriage. You’re no longer married and can remarry if you wish.

Legal separation (judicial separation) – you remain legally married but the court recognises you’re living apart. Often chosen for religious reasons or when you’ve been married less than a year.

Informal separation – you simply live apart without any legal process. You remain married with no formal recognition of your separation.

Each has different legal, financial, and practical implications.

Divorce: ending the marriage completely

Divorce legally dissolves your marriage. Once you receive your final order, you’re no longer married to each other.

Advantages of divorce

Finality and closure – the legal end of your marriage can provide emotional closure and a clear line between your past and future.

Freedom to remarry – only divorce allows you to marry someone else. If you think you might want to remarry eventually, divorce is the only option.

Clean break possible – divorce allows the court to make a “clean break order” that ends all financial ties between you. This means neither of you can make claims against the other in the future.

Full range of financial orders – the court can make any financial order, including pension sharing. This is important because pensions are often a couple’s most valuable asset after their home.

Protection from future claims – with a properly drafted consent order, you’re protected from your ex-spouse making financial claims years later.

Disadvantages of divorce

Must wait 12 months – you can only apply for divorce once you’ve been married at least a year.

Takes at least 6 months – the process has built-in waiting periods totalling 26 weeks minimum.

Potential loss of spouse’s pension rights – depending on how your financial settlement is structured, divorce might affect rights you have to your spouse’s pension if they die.

Emotional significance – for some people, particularly those with religious beliefs, divorce carries a weight that other options don’t.

Costs – the court fee is £593, plus any legal costs if you use a solicitor.

Legal separation: remaining married while living apart

Legal separation (formally called judicial separation) is a court process that recognises your separation without ending the marriage.

When legal separation makes sense

Religious or cultural reasons – some faiths don’t permit or discourage divorce. Legal separation provides a formal alternative.

Married less than a year – you can’t divorce until you’ve been married 12 months, but you can apply for judicial separation immediately.

Not ready to decide – if you need time apart but aren’t sure whether your marriage is truly over, separation provides breathing space.

Financial benefits of remaining married – in some cases, staying legally married preserves certain financial advantages (though this varies by individual circumstances).

Preserving spouse’s pension death benefits – if you remain married, you may retain rights to your spouse’s pension if they die. Divorce usually ends these rights.

Advantages of legal separation

No waiting period – unlike divorce, you can apply for judicial separation at any time, even the day after your wedding.

Court can make financial orders – the court can order how to divide property, arrange maintenance payments, and make other financial provisions.

Retains certain marital benefits – you may keep rights to spouse’s pension death benefits, bereavement benefits, and potentially some tax advantages.

Doesn’t preclude divorce later – if you change your mind, you can still apply for divorce. Your separation agreement may help inform the divorce settlement.

Disadvantages of legal separation

Cannot remarry – you remain legally married, so neither of you can marry anyone else.

No pension sharing orders – the court cannot make pension sharing orders during legal separation, only on divorce. This is significant because pensions are often a major asset.

No clean break – you cannot get a clean break order, meaning financial claims between you remain theoretically possible.

Similar costs to divorce – the court fee for judicial separation is £365, and you’ll likely still need legal advice on finances.

Future financial vulnerability – without the finality of divorce, your financial position may remain uncertain.

Informal separation: simply living apart

Many couples separate without any legal process – they just stop living together. This is often called informal separation.

When informal separation might work

You need time to think – living apart can help you both gain perspective on whether the marriage can be saved.

Financial simplicity – if you have few assets, no children, and trust each other, you might not need legal involvement.

Temporary arrangement – if you expect to reconcile or are working on your relationship.

Cost concerns – informal separation costs nothing in court fees, though you’ll miss out on legal protections.

Advantages of informal separation

Free and immediate – no court fees, no applications, no waiting periods.

Easy to reverse – if you reconcile, there’s nothing to undo legally.

Privacy – no court involvement means your affairs remain private.

Flexibility – you can make whatever arrangements suit you without formal constraints.

Disadvantages of informal separation

No legal protection – any agreements you make aren’t legally enforceable. If your spouse changes their mind about who gets what, you have no recourse.

Financial vulnerability – you remain financially connected to your spouse. Debts they take on could affect you. If they die, inheritance may be complicated.

No clean break – your spouse could make financial claims against you at any point, even years later.

Complications if you meet someone else – you can’t remarry, and any new relationship exists in a legal grey area regarding finances.

Children’s arrangements are informal – without a court order, agreements about where children live aren’t enforceable.

Separation agreements

If you choose informal separation, you can still create a written agreement setting out:

• Who lives where
• How you’ll handle finances
• Arrangements for children
• Division of property and debts
• Maintenance payments

A separation agreement isn’t automatically legally binding like a court order, but if it’s properly drafted with both parties receiving legal advice, courts usually give it significant weight if you later divorce.

Having a separation agreement provides some protection and clarity, even without court involvement.

Which option is right for you?

What about our finances?

Whichever option you choose, you’ll need to address finances:

Divorce – the court can make binding orders about everything: property, savings, pensions, debts, and maintenance. A consent order gives you legal certainty.

Legal separation – the court can make most financial orders, but not pension sharing or clean break orders. You get some protection but not complete finality.

Informal separation – any agreement is only as good as both parties’ willingness to honour it. Getting a written separation agreement drafted by solicitors provides some protection.

Moving between options

You can change your approach over time:

• Informal separation → divorce – very common. Many couples live apart while they decide, then divorce when they’re certain.

• Informal separation → legal separation – possible if you want court recognition without divorce.

• Legal separation → divorce – you can divorce after a judicial separation whenever you’re ready (once you’ve been married at least a year total).

You cannot go directly from divorce back to being married – once the final order is granted, you’d need to remarry if you wanted to be legally married again.