LEGAL IMPLICATIONS: SEPARATION VS. DIVORCE
An unsuccessful marriage is often disposed of by a divorce between the spouses. When the two parties in a marriage are unable to live together and are ultimately incompatible, the parties in such a situation, opt for a formal closure to the marriage called a divorce. According to the Concise Oxford Dictionary of Sociology (1994), ‘the formal legal dissolution of legally constituted marriage’ is termed as a divorce. But sometimes, parties in an impugned marriage do not directly resort to divorce, instead they avert the formal dissolution by a legal separation.
The concept of legal separation holds a very significant position in the range of family law. It is the most effective alternative to settle disputes in a conflicting marriage. Legal separation means a process wherein a couple in a marriage lives in separation from each other following a court order. The couple lives apart from each other in a generally accepted first step towards a divorce. It provides the couple an opportunity to reflect upon their relationship and to think more clearly about their future. For some couples, legal separation is a prospect of reconciling the relationship while for some couples it is the track to a divorce. Legal separation could be classified into three types: trial separation, permanent separation and legal separation.
Both the concepts of divorce and legal separation share an important relationship. In divorce and legal separation, the court plays an important role in granting child custody, rights regarding visitation, division of the property based on the status of the couple and maintenance for the spouse and children etc. which is similar between both.
However, legal separation and divorce do share a significant variation in their legal implications. Unlike divorce which formally puts an end to a marriage, legal separation designates that the couple is still married, permitting them to be entitled to certain benefits. A separated couple is allowed to retain the family health insurance, spousal retirement benefits, tax benefits etc. A separated spouse is allowed to make financial or medical decisions for the other whereas under a divorce, an ex- spouse is a stranger to the medical and financial decisions of the other.
During a divorce proceeding all debt and liabilities shared by the spouses are settled, thus after the granting of divorce there can be no debt or liability between the spouses which arose from the marriage. However, under legal separation there is no settlement of debts and liabilities.
The property rights of the spouse are also affected differently. Under divorce, the person’s right to inherit the property of the spouse is completely annulled while under the counterpart, the right to inherit is retained. Moreover, one of the most important legal implications that differ between the two is the right to marry, i.e., determination of marital status. A separated spouse is legally married, they retain their marital status and cannot remarry without a formal divorce. Under a divorce, however, a person is free to remarry. Reconciliation between the spouses is easier for a legally separated couple whereas under a divorce, it is an ultimate end to a marriage affair. Reconciliation after divorce is possible only by marrying the former spouse again.
To understand the legal complexities and technicalities involved in a divorce and legal separation is an arduous task. Therefore, the role of a lawyer in such a fragile situation becomes highly imperative. A lawyer will provide a client with sound legal advice as to the intricacies of legal separation or divorce and thus permit the client to make a completely informed decision based on their best interests.
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