Difference between separation and divorce

According to the latest data provided by the CGPJ (General Council of the Judiciary), in 2020, 95,060 divorce, separation and annulment cases were processed in Spain. Of these, approximately 37,000 ended up in contentious proceedings, i.e. without mutual agreement. These data reveal a downward trend for the sixth consecutive year, although it is true that the effects of the pandemic were probably felt.
However, what really interests us here is to find the difference between separation and divorce. Two terms that are often used synonymously, but which do not imply the same thing.

Divorce

To understand the difference between divorce and separation, both concepts must be well defined. Let's start by talking about the legal concept of divorce, which is a figure that involves the dissolution of the marriage bond. It comes into effect by means of a court sentence (cases processed through contentious proceedings when there is no mutual agreement or when there are children involved) or notarial deed (the so-called express divorce, which requires an understanding between the parties).
When the marital relationship is terminated, the economic regime established between the parties is dissolved, whether it is a community of property or separation of property regime. This also entails the loss of inheritance rights between the spouses and of all other duties arising from the union, with the exception of those relating to the children. In addition, once the divorce is formalised, both spouses may remarry if they wish to do so.

How do you start the divorce process?

There are, as mentioned above, two alternatives. The only real requirement is to wait three months from the celebration of the marriage to file for divorce (with the exception that there is a risk to the economic, psychological or physical integrity of the person initiating the action):

• Divorce by mutual consent. This is the simplest procedure. If the couple do not have children, they can resort to the express divorce formula before a notary. The couple only has to agree on a regulatory agreement and present it to be validated by the notary or by the judge if there are children in common. Both spouses can share lawyer and solicitor if they wish.
• Contentious divorce. This occurs in cases where there is no agreement between the spouses. It can be initiated by either of them by means of a lawsuit, which must include a proposal for a regulatory agreement. After the judicial process, it will be the judge who will determine the conditions for the end of the marriage by means of a sentence.

Separation

Separation, in legal terms, refers to the end of the cohabitation between the spouses, after which they both start independent lives. However, it does not put an end to the matrimonial bond, so the economic regime established at the time of the union remains in force.
But why is it necessary to apply for separation? Quite simply. This is mainly because if one spouse decides to leave home and start a life on his/her own, the other spouse could denounce him/her for desertion of the home, which would have important effects in a subsequent divorce action.

How is the separation process initiated?

There are two alternatives. Specifically, we talk about:

• De facto separation. It is caused by the unilateral decision of one of the spouses and by mutual agreement. Financial matters and relations with the children in common must be regulated by notarial act.
• Judicial separation. This is the contentious route. It is a matter of a judge determining the conditions of separation if the spouses are unable to reach an understanding. In this case, the economic regime is dissolved and the assets are distributed.

Divorce or separation: common elements

Before we focus on summarising the difference between separation and divorce, we would like to outline more clearly what the common elements are between the two legal concepts. The most obvious similarity is that they both put an end to the cohabitation within the marriage. Furthermore, they need to determine how the life of the spouses will be afterwards in terms of child custody, alimony, visiting arrangements, etc. Inheritance rights are also abolished in both cases.
 

Separation or divorce: the main differences

The most important difference lies in the fact that divorce puts an end to the marital relationship, whereas separation does not. On this basis we can understand the rest:

• Once the divorce has been executed, the spouses are in a position to remarry another person if they deem it appropriate. This is not the case with separation.
• Divorce dissolves the matrimonial property regime. Separation, on the other hand, has the same effect as separation of property.

Moreover, in the case of separation, the case of reconciliation is always taken into account. All you need to do is to inform the court that you have decided to live together again as a couple. This will automatically invalidate the judgment of separation or the notarial act that produced its effects and will reactivate the marriage under the same conditions in which it was contracted. In other words, both spouses will recover their rights and obligations in terms of expenses, inheritance, children, etc.

Which is better separation or divorce? Conclusions

We cannot say that one solution is better than the other, as it all depends on the situation of the couple and the conditions of their relationship. For example, when you are certain that you do not want to be with the other person, it is best to opt for divorce, as this will give both partners the freedom to create a new life.
On the other hand, if you have doubts about this, have no intention of looking for a new partner and believe that reconciliation is possible within a certain period of time, separation is a more interesting alternative as it can be revoked quickly and easily. It is true that, even if a divorce has taken place, the two can remarry in the future, but it is a rather more complex process.
In short, we hope we have made clear the difference between separation and divorce so that you can make the decision that best suits your case. However, we do recommend that you contact a lawyer specialised in family law. He or she will give you the personalised advice you need to make the right decision regarding your relationship.