Separation vs Divorce – Married Couples and Civil Partners
When a marriage or civil partnership reaches a crossroads, individuals often contemplate the best course of action: separation vs divorce. Understanding the legal nuances of these two options is important.
Let’s take a closer look at the specifics of separation and divorce, exploring the key differences and the legal framework that governs each in England and Wales.
Governing Law – Contract Law vs. Matrimonial Causes Act
Or put another way – a separation agreement vs. a consent order. The former, while not legally binding, provides a framework for the future under Contract law. It doesn’t remove marital or civil partnership rights, but it can serve as the foundation for a consent order later. However, a court cannot be bound by an agreement it hasn’t seen. In contrast, the latter provides legally binding protection under the Matrimonial Causes Act 1973 (MCA). Section 25 of the MCA outlines the considerations for financial settlements, providing a robust legal framework.
Child Maintenance – A Statutory Obligation in Both Cases
Whether through separation or divorce, child maintenance is a statutory obligation in England and Wales. Regardless of the route chosen, parents are legally required to financially support their children.
Spousal Maintenance – From Voluntary Agreements to Court Orders
In a separation, spousal maintenance cannot be covered in the agreement, but parties can agree to voluntary payments. On the divorce path, spousal maintenance becomes a topic in family mediation discussions and, if agreed upon, is covered by a court order, adding a layer of legal certainty.
Clean Break – A Difference in Approaches
A clean break, which means severing financial ties, is irrelevant in a separation agreement as it does not go through court approval. A clean break can only be achieved through a divorce, providing a clear financial separation.
Financial Disclosure – Full Transparency in Both Cases
Both separation and divorce require full financial disclosure. However, when opting for separation, there is a higher likelihood of additional disclosure being required if a divorce is pursued later.
Settlement Terms – The Legal Weight of Consent Orders
In separation, agreements are not legally binding – although either party can ask a court to impose the terms of the agreement. One danger is that over time, parties can change their minds before divorce. In divorce, settlement terms are formalised in a consent order submitted to the court, becoming legally binding. This prevents either party from altering the agreed-upon terms in the future.
Pensions – Divorce’s Exclusive Territory
Pension sharing, a crucial aspect of financial settlements, can only be implemented through a consent order and a pension sharing order, both exclusive to the divorce route.
Asset Split – From Private Agreements to Consent Orders
In separation, the asset split is a private agreement that can be revisited and renegotiated. In divorce, it is covered in the consent order, providing finality, and is legally binding. Once a consent order is in place, neither party can reopen negotiations. To be precise, nothing stops either party trying to change a consent order in court but, generally speaking, judges do not like parties trying to change what is usually a legally binding agreement.
As couples stand at the crossroads of separation and divorce, it’s important to weigh the legal implications carefully.
While a separation agreement may provide a starting point, divorce offers a more robust and legally binding framework for addressing the intricacies of financial disclosure, child maintenance, spousal support and asset distribution.
Understanding these differences empowers individuals to make informed decisions as they navigate the complexities of relationship transitions.
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