When a marriage encounters difficulties that feel impossible to resolve, couples may explore options such as divorce or judicial separation.
Official figures show that there were more than 102,000 divorces in England and Wales in 2023, but separation and family breakdown extend beyond formal statistics.
In 2024, an estimated 2.5 million families were living apart while still technically married or co-parenting, involving around 4 million children.
Nearly two-thirds of these families had a formal child maintenance arrangement in place, demonstrating how many separated couples continue to manage legal and financial issues without dissolving their marriage.
This highlights a key difference: unlike divorce, which legally ends a marriage, legal separation allows couples to live apart and manage responsibilities (such as finances or childcare) while remaining married.
We’ll explore how legal separation differs from divorce and how a solicitor can help you navigate each process below.
What Is the Difference Between Judicial Separation and Divorce?
While divorce and judicial separation are both legal responses to the breakdown of a marriage, they have different legal effects and implications for the future.
Divorce
Divorce is the formal legal process that brings a marriage to an end. Once a divorce is finalised, the legal relationship between spouses ceases, and both parties are free to remarry if they wish. It provides a clear and permanent conclusion to the marriage.
However, divorce alone does not automatically resolve financial ties between spouses. Financial obligations can continue unless a separate financial order is put in place. This is important for couples who plan to remarry, as unresolved financial claims can still be brought at a later date.
Seeking legal advice at an early stage can help ensure that financial matters are properly addressed and legally concluded.
Judicial Separation
Judicial separation, sometimes referred to as legal separation, offers an alternative for couples who wish to live apart without formally ending their marriage. It is a court order which allows spouses to live independently while remaining legally married.
Unlike divorce, it does not dissolve the marriage, meaning neither party can remarry unless they later go on to divorce.
Although the marriage remains intact, judicial separation allows couples to formalise arrangements for living apart. The court can make financial orders to help separate finances, allocate responsibilities, and deal with the division of assets.
Importantly, judicial separation does not prevent either party from applying for a divorce in the future should their circumstances or views change.
Legal Requirements for Divorce
Certain conditions must be met to legally obtain a divorce in England and Wales.
Minimum Length of Marriage: The couple must have been married for a minimum of one year before filing for divorce.
Jurisdiction: The courts of England and Wales must have authority over the case. Typically, this requires at least one spouse to be permanently domiciled or habitually resident in England or Wales. This is particularly important for couples where one or both parties live abroad.
Grounds for Divorce: The Divorce, Dissolution and Separation Act 2020 has made the divorce process no-fault, meaning couples no longer need to prove adultery, unreasonable behaviour, or separation.
The only requirement is to state that the marriage has irretrievably broken down. This can be done as a sole application (one spouse applies) or a joint application (both spouses apply together).
Legal Effects
Divorce ends the marriage but does not automatically resolve financial or child-related matters. Couples should seek legal advice and may apply for a Financial Consent Order to formalise arrangements for property, savings, pensions, and spousal maintenance.
Child arrangements, including custody, visitation, and support, should also be formally agreed upon, ideally through the court if needed.
Legal Requirements for Judicial Separation
Judicial separation in England and Wales was simplified under the Divorce, Dissolution and Separation Act 2020, which came into effect in April 2022.
Minimum Length of Marriage: There is no minimum duration of marriage required. Couples can apply for judicial separation at any time after their wedding.
Jurisdiction: The courts of England and Wales must have authority over the case. At least one spouse must be permanently domiciled or habitually resident in England or Wales.
Grounds for Judicial Separation: Since the 2020 Act, spouses can simply state that they wish to pursue a judicial separation, without proving fault or irretrievable breakdown. Applications can be made as a sole application (one spouse applies) or a joint application (both spouses apply together).
Legal Effects
Judicial separation does not end the marriage, but spouses are no longer required to cohabit. The court can make orders to formalise financial arrangements, including property, debts, spousal support, and child maintenance.
Child arrangements, such as custody, visitation, and support, should also be agreed upon formally, ideally through the court if needed. Pension sharing orders are not available under judicial separation.
Which is Better: Legal Separation or Divorce?
Deciding between legal separation (judicial separation) and divorce depends on your personal circumstances, financial considerations, and long-term goals.
When Divorce May Be Preferable
Divorce is generally the better option when couples want to legally end their marriage:
Financial Security: Permanently ends financial claims, ensures a clear division of assets (including retirement wealth), and removes responsibility for a spouse’s future debts.
Personal Reasons: Allows remarriage, provides emotional closure, and is often better in high-conflict situations.
When Legal Separation May Be Suitable
Judicial separation keeps the marriage intact while offering most financial protections of divorce, and may be appropriate for:
- Religious or cultural reasons that prevent divorce.
- Preserving marital benefits while formalising financial separation.
- Special circumstances, such as immigration or nationality considerations.
How Can We Help
At Harding Evans, we understand that deciding between divorce and legal separation can be both emotional and complex.
Our experienced Family & Matrimonial solicitors are here to guide you through every step. We can assist with preparing and filing court applications, advising on child arrangements, and serving documents to your spouse, ensuring the process runs as smoothly as possible.
Seeking professional advice early helps you make informed decisions, avoid potential pitfalls, and achieve a fair and legally binding outcome that protects your interests and those of your family.
Get in touch with our Family & Matrimonial solicitors today.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. For advice specific to your situation, you should consult a qualified solicitor.
