Legal Separation: How Judicial Separation Works

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.

What is legal separation in the UK?

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.

• Living apart by agreement. You separate and, if you wish, record the terms in a written agreement. No court is involved, and the agreement is not an order of the court.
• Judicial separation. One or both of you apply to the family court, and the court makes an order. That order also opens the door to financial orders that the court can enforce.
• Divorce. One or both of you apply for a divorce order. The final order ends the marriage, and either of you can then remarry.

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.

Legal separation vs divorce: what changes and what does not?

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.

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.

Why do people choose judicial separation instead of divorce?

GOV.UK names three reasons, and each one reflects something the law actually does.

• Faith or conscience. Some people cannot accept divorce for religious reasons. A judicial separation formalises the separation without ending the marriage.
• Married for less than a year. Section 3 bars any divorce application until the first anniversary. Judicial separation has no such bar.
• Time and space. Some couples want a formal footing while they decide whether the marriage is really over.

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.

Legal separation or divorce? Check in three questions

How do you apply for a judicial separation?

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.

1. Choose a sole or joint application. You can apply together if you both agree and you are not at risk of domestic abuse. Apply alone if your spouse does not agree, or you do not think they will cooperate or respond to the court.
2. Complete form D8S. It is the judicial separation application form published by HM Courts & Tribunals Service. The application includes the statement that you seek to be judicially separated (s.17(1A)).
3. Send three copies. Post them to the address on the form, keep your own copy, and include a certified copy of your marriage or civil partnership certificate.
4. Pay the fee. The fee is £426. 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 qualify.
5. The order. The court does not ask why you are separating. Once the application is properly made, it must make the judicial separation order (s.17(1B)).

If you decide on divorce instead, the application is different, and our guide to the D8 divorce application covers it.

What financial orders can the court make on judicial separation?

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.

• Maintenance. Periodical payments from one spouse to the other, which can be secured, and payments for a child of the family (s.23).
• Lump sums. One or more lump sums, for a spouse or for a child of the family (s.23).
• Property. Transfers of property, such as the family home, and settlements of property (s.24).

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.

Does a judicial separation decide arrangements for the children?

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.

What does a judicial separation not do?

A legal separation changes less than many people expect.

• It does not end the marriage. Neither of you can remarry, or form a civil partnership, while you remain married.
• It does not unlock pension sharing. That needs a divorce or nullity order (s.24B).

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.

Can you turn a legal separation into a divorce later?

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.

Legal separation: frequently asked questions

You can also read our guides to financial settlements and divorce.

General information about the law in England and Wales, not advice on your circumstances.