Family law guide
Part of: Divorce Specialists
A legal separation lets a married couple live apart with the court’s formal recognition, while the marriage itself carries on. In England and Wales the formal version is a judicial separation order, made under section 17 of the Matrimonial Causes Act 1973. Neither of you can remarry. However, the court can still divide money and property, much as it can on a divorce. People choose it for religious reasons, because they have been married for less than a year, or because they are not ready to end the marriage.
If you simply want to live apart and write down what you have agreed, that is a private contract rather than a court order. Our guide to separation agreements covers that route. This page is about the court order, and how it compares with a divorce.
Weighing separation against divorce? Check which route fits in three questions, or book a free initial consultation.
It is a court order that recognises you are living apart, without ending your marriage. When people talk about a legal separation in the UK, though, they usually mean one of two very different things. Both stop short of divorce, which sits one step further on.
This guide covers England and Wales. Scotland and Northern Ireland have their own separate procedures. Civil partners follow the same route. For them the court makes a separation order under section 56 of the Civil Partnership Act 2004, and GOV.UK describes form D8S as the form for separating from a husband, wife or civil partner.

The difference between legal separation and divorce is simple. A divorce order ends the marriage, whereas a judicial separation order leaves it in place. Most of the other differences follow from that.
| Question | Judicial separation | Divorce |
|---|---|---|
| Does the marriage end? | No | Yes, once the final order is made |
| Can either of you remarry? | No | Yes, after the final order |
| Can you apply in the first year of marriage? | Yes | No (s.3) |
| How many court orders? | One judicial separation order (s.17(1B)) | A conditional order, then a final order (s.1(4)) |
| Built-in waiting period? | None set by the Act | 20 weeks before the conditional order, then 6 weeks (s.1(4) and (5)) |
| Financial orders for maintenance, lump sums and property? | Yes (ss.23 and 24) | Yes (ss.23 and 24) |
| Pension sharing order? | No (s.24B) | Yes (s.24B) |
| Court fee on GOV.UK | £426 | £628 |
Sources: Matrimonial Causes Act 1973 as amended by the Divorce, Dissolution and Separation Act 2020, and GOV.UK court fees.
The timetable row matters more than it looks. A divorce has a built-in 20-week period of reflection, which the court shortens only in a particular case (s.1(8)). Our guide to the 20-week divorce period explains it. By contrast, the Act sets no equivalent waiting period for a judicial separation.
GOV.UK names three reasons, and each one reflects something the law actually does.
Pensions can be a fourth reason, but they cut both ways. On one hand, some pension schemes pay survivor benefits only to a husband, wife or civil partner, so staying married may matter, and the scheme rules decide. On the other hand, the court cannot make a pension sharing order on a judicial separation. Therefore, if a pension is the biggest asset, that point needs weighing before you choose.
Answer all three to see which route fits.
Why these three questions?
Nothing you choose is saved or sent anywhere.
These depend on the facts of your marriage, so it is worth getting them right before you choose a route.
Book a free initial consultation
One of our specialists will give you initial advice on your situation.
You apply on paper, using form D8S, because a legal separation through the court starts with an application like any other. GOV.UK sets out the steps below. Its guide describes only a paper application, not an online service.
If you decide on divorce instead, the application is different, and our guide to the D8 divorce application covers it.
Almost all of the orders available on divorce. This is where a legal separation by court order differs most from simply living apart. Sections 23 and 24 of the 1973 Act apply on making a judicial separation order, or at any time afterwards.
In deciding what is fair, the court applies the same checklist as on divorce. First consideration goes to the welfare of any child of the family under 18 (s.25). Pensions are taken into account too (s.25B). The court cannot split a pension on a judicial separation, but it can order the scheme to pay part of a pension payment to the other spouse when it falls due (s.25B(4)). If you have reached agreement, the terms can go to the court as a financial consent order.
No. The order provides for the separation of the two of you. By contrast, where the children live and when they see each parent is decided separately under the Children Act 1989, whether or not the marriage continues. Many parents agree arrangements without any order. Where that fails, the court can make a child arrangements order.
From our casework. We assisted a parent who was going through a divorce and had reached an impasse with the other parent over how the children's time should be shared across the school week, weekends and school holidays. The first task was to narrow the disagreement and decide whether a court order was needed at all. The children's arrangements stay a separate question in just the same way when the marriage continues under a judicial separation order.
A legal separation changes less than many people expect.
One thing it does change is inheritance where there is no will. If either of you dies without a will while the order is in force and the separation continues, the estate passes as if the other spouse had already died (s.18(2)). So a spouse who expected to inherit under the intestacy rules would not. A will is not affected by that rule, so review yours at the same time.
If the marriage may never have been valid in the first place, that is a different question altogether. Our guide to marriage annulment covers it.
Not by converting it. Instead, you make a fresh application for a divorce order under section 1. That application needs only a statement that the marriage has broken down irretrievably, and the court must accept it (s.1(2) and (3)). The one-year bar still applies, so the marriage must have lasted at least a year first.
Before you apply, look again at any financial orders made on the separation. In particular, pension sharing becomes available once there is a divorce order.
Yes. Section 3 of the Matrimonial Causes Act 1973 bars divorce applications only within the first year. GOV.UK confirms you can apply for separation during your first year of marriage.
No. A judicial separation order does not end the marriage, so you are still married. To remarry you would need a divorce, which means a fresh application for a divorce order.
The court fee is £426, according to GOV.UK. You may be able to get help with fees if you are on benefits or a low income. For a joint application, both of you must be eligible.
GOV.UK describes a paper application only. You complete form D8S, post three copies to the address on the form, and include a certified copy of your marriage or civil partnership certificate.
No. A separation agreement is a private contract between you. A judicial separation is an order of the court, and the court can make financial orders alongside it.
Yes, if there is no will. While the order is in force and you remain separated, a spouse who dies without a will is treated as if the other spouse had already died (s.18(2)). A will is not covered by that rule, so review yours.
Choosing between separation and divorce shapes your money, your pension and your future options. So it is worth getting the choice right before you file anything.
A free initial consultation is a conversation with a specialist, who gives you initial advice on your circumstances. It does not include drafting or reviewing documents. Before the call, it helps to note:
You can also read our guides to financial settlements and divorce.
Decide what you need the order to do before you choose between separation and divorce. If the real aim is security over the home or regular maintenance, both routes can deliver it. On the other hand, if the main asset is a pension, only divorce opens pension sharing. Pick the route for the money as well as the marriage, not the label.
Garry Steedman, Family Law Consultant (Divorce, Children & TOLATA)
General information about the law in England and Wales, not advice on your circumstances.
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