Fast FAQs

What is the difference between divorce and separation, and which is best?

You can separate simply by walking out on your spouse, or by agreement. You do not need to make any formal legal arrangement, but it is a good idea to reach agreement on key issues such as who will look after any children and what the financial arrangements will be, and to set them down in a separation agreement or deed of separation.

You will also need to decide what happens to the family home. If you own it jointly with your spouse, it normally means that, if one of you dies, their share automatically goes to the other and, if you sell, you jointly own the proceeds.

If you are separating, you can get your solicitor to draft a document that creates two separate shares in the property, so that each spouse's share will pass to their heirs if the other dies (which means that you can each decide who you leave your share to in your will), and you will each be entitled to a specific proportion of the proceeds if you sell.

You need to agree what share each of you will have. If you contributed equal sums when you bought the family home, and have contributed equally since, you'll probably share 50:50. But if one of you has put more in, you can agree a different proportion. Then ask your solicitor to draw up the document.

If one of you later decides you want to divorce on grounds of separation (see question two), it doesn't matter whether you have separated formally or informally.

The main terms of a divorce can also be negotiated between you, but a divorce also involves the court. This has several important differences:

• You can only get divorced if you can satisfy the court that the marriage has broken down irretrievably (see question two).
• Once you are divorced, the marriage is over, whereas separation can be temporary.
• The terms of a divorce can be ratified by the court, which means that it is less likely that either of you will be able to change them in future (though there are exceptions, largely in relation to looking after the needs of any children).

Judicial separation is a third option, although it is rare. You remain married, but you ask the court to recognise your separation formally. This means you can apply to the court for certain orders dealing with financial and property issues, as in divorce proceedings. The process and costs are similar to a divorce, and it is often used as an alternative where one spouse has a religious or strong moral objection to divorce.

The best choice for you will depend on the circumstances. If you are not sure that the marriage has completely broken down, a separation is the better option. By contrast, a divorce gives you more certainty if you want to end the relationship and put your financial and family arrangements in order. If you want to remarry, you will need to get a divorce.

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