Divorce and separation – what’s the difference?

For those who are newly separated or going through a divorce, the start of the year can be an especially difficult time. January is a busy time for people separating after the stress of the Christmas period, followed by February with the pressure of Valentine’s Day, which can be a final straw for some. So, if you are going through this process, know you are not alone and that we’re here to help guide you through. Here we explain what happens during the initial stages of a divorce or separation, and also how the two differ in legal terms.

Seeking legal advice on a separation or divorce

We understand that separation and divorce can be a painful experience. Receiving specialist legal advice early on from a family law solicitor on your individual circumstances and options can make the process much less daunting. Taking initial advice doesn’t necessarily mean that you need to immediately take action or that you will end up in court.

What can I do now to prepare for a divorce or separation?

There is some preparation you can do in advance of taking legal advice, such as preparing a list of all bank accounts, assets and debts you have individually and jointly. Matrimonial assets are valued as at the date of separation, and so a note of that date will be helpful. Often couples will continue to live under one roof following their separation so specialist advice will be needed to establish that date.

Do I need a Separation Agreement?

We can help you find an outcome that is right for you and your family and we aim to resolve matters through negotiation wherever possible. If an agreement can be reached, then it will be recorded in an agreement called a ‘Separation Agreement’ which sets out how the finances will be dealt with and can record the child care arrangements for any children.

What’s the difference between a Separation Agreement and a divorce?

A Separation Agreement is a contract. It is not a divorce. If a Separation Agreement is entered into, divorce will still need to be applied for. If there are no children under the age of 16 and the financial matters have been dealt with in the agreement, divorce can be applied for using the cheaper, simplified procedure, sometimes known as the ‘DIY divorce’. In all other cases divorce needs to be applied for using the ordinary procedure. Once you have been separated for at least one year you may be able to use the period of separation as grounds for divorce, as long as your spouse will provide their consent to the divorce. In the absence of your spouse’s consent, you can apply for divorce once you have been separated for two years. The other fault grounds are less commonly used if an agreement has been reached but we can advise you on all of the options open to you.

If you would like advice, we have family law specialists across Scotland who will help make the process as easy and straightforward as possible for you.

You might also be interested in these articles:

• Tax implication of Separation and Divorce
• When a key comes before a ring
• Prenups aren’t just for the rich and famous

Legal disclaimer