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Separation

Also known as: Marital Separation, Legal Separation

Definition

Separation is when married couples or civil partners live apart, either informally by agreement or formally through a court order, while remaining legally married or partnered.

Understanding separation is crucial for will planning because your separated spouse retains full inheritance rights until you divorce.

What Does Separation Mean?

There are two types of separation in the UK. Informal separation is when you and your spouse or civil partner simply live apart by agreement with no court involvement. Judicial separation is a formal court order under the Matrimonial Causes Act 1973 that legally recognises your separation. You apply to court (cost £415), and the court can make orders about finances, property, and children. Crucially, both types leave you legally married or in a civil partnership—you cannot remarry until you divorce.

People choose judicial separation for religious or cultural objections to divorce, uncertainty about the relationship, or needing court-ordered financial arrangements. Informal separation often happens as a trial period or when couples aren't ready for divorce. Many people wrongly believe that living apart for years means automatic divorce. There is no automatic divorce in England and Wales—you remain legally married until you formally divorce through the courts.

Separation has critical implications for your will. If you're separated but not divorced, your spouse retains full inheritance rights. If you die without a will (intestate), your separated spouse inherits as if you were happily married—even after decades apart. The only exception is judicial separation, which treats your spouse as having predeceased you for intestacy purposes under HMRC guidance. However, unlike divorce, separation does NOT invalidate provisions in your existing will under the Wills Act 1837. If your will names your spouse as beneficiary or executor, those provisions remain valid. If Sarah and David separated five years ago but Sarah never updated her will, David still inherits everything. Update your will immediately upon separation.

Common Questions

"If I'm separated but not divorced, can my spouse still inherit from my will?"

Yes, if you're separated but still legally married, your spouse remains your spouse in law and can inherit under your will or intestacy rules unless you've specifically excluded them. Separation alone (even if you've lived apart for years) doesn't change your legal marital status or their inheritance rights. You should update your will immediately upon separating.

"What's the difference between informal separation and judicial separation?"

Informal separation is simply living apart by mutual agreement with no court involvement, while judicial separation is a formal court order legally recognising the separation. With judicial separation, you can obtain financial orders and property arrangements but remain legally married and cannot remarry. Informal separation provides no legal framework for financial matters.

"Do I need to get a judicial separation before I can divorce?"

No, you don't need a judicial separation before divorcing in England and Wales. You can proceed directly to divorce after one year of marriage. Many people skip judicial separation entirely and move straight to divorce. Judicial separation is mainly chosen for religious or personal reasons when divorce isn't desired.

Common Misconceptions

Myth: "If we've been separated for 2 years (or 5 years), we're automatically divorced."

Reality: There is no automatic divorce in England and Wales, no matter how long you've been separated. You remain legally married until you obtain a formal divorce order. Even couples apart for decades are still married unless they've completed the divorce process. Your separated spouse retains full spousal rights, including inheritance rights, until you divorce.

Myth: "When we separated, the parts of my will about my spouse automatically became invalid."

Reality: Separation does NOT invalidate provisions in your existing will about your spouse. If your will names your spouse as beneficiary or executor, those provisions remain valid. Only divorce causes will provisions about the former spouse to lapse automatically under the Wills Act 1837. If you made a will before separating and haven't updated it, your separated spouse inherits according to that will.

  • Divorce: The legal ending of marriage that triggers automatic changes to your will under the Wills Act 1837, unlike separation.
  • Dissolution: The civil partnership equivalent of divorce, ending the partnership rather than just creating separation.
  • Marriage: The legal status that continues during separation, which is why separated spouses retain full inheritance rights.
  • Ex-spouse: Someone you've divorced, with different legal rights than a separated spouse who remains legally married.
  • Revocation: Divorce automatically revokes will provisions about your ex-spouse, but separation does not.

Need Help with Your Will?

If you've separated, update your will immediately to protect your estate from unintended inheritance. Your separated spouse retains full inheritance rights until you divorce.

Create your will with confidence using WUHLD's guided platform. For just £99.99, you'll get your complete, legally binding will plus three expert guides. Preview your will free before paying anything—no credit card required.

Legal Disclaimer:

This article provides general information only and does not constitute legal or financial advice. WUHLD is not a law firm and does not provide legal advice. Laws and guidance change and their application depends on your circumstances. For advice about your situation, consult a qualified solicitor or regulated professional. Unless stated otherwise, information relates to England and Wales.