What are the differences between separation and divorce?

When a couple decides to interrupt their marital relationship by mutual consent, many questions arise about the differences between separation, divorce and interruption of marriage. Below, we explain what each process entails.

What does separation mean?

Separation entails the end of the cohabitation of both spouses.

It can be a de facto separation, in which the spouses give each other time to determine whether or not to continue their relationship. Or they can carry out a legal separation in order to obtain a court decision which, in addition to declaring the marital separation, establishes the rights and duties of each of the spouses in relation to the minor children (if any), to each other and to the common property, such as the marital home.

And divorce?

It is also possible for the spouses to enter into a divorce, which terminates the marital relationship. This will reflect the personal, property and child-related consequences (custody and guardianship, visiting arrangements, communication and residence, exercise of parental authority, use of the home, etc.).

Similarities between separation and divorce

Both legal separation and divorce require going to court and obtaining a judgment. However, if the spouses agree and there are no minor children, it is possible to obtain a legal separation or divorce through a notary.

Likewise, if the spouses were married in community of property, both with the legal separation and with the divorce, this matrimonial property regime is dissolved.

In the case of legal separation, if the spouses were married in community of property, from the moment of legal separation the regime is extinguished and they will be in separation of property. If the legally separated spouses subsequently reconcile, they will not revert to community of property, but will remain in separation of property after the reconciliation, unless they draw up marriage contracts before a notary in which they expressly agree that from that moment onwards they will be governed by community of property.

With regard to inheritance, whether separation (whether legal or de facto) or divorce occurs, the right to inherit from the other spouse is lost, as well as the right to the widowed spouse's legitimate share, although if desired, it is possible to leave something in the will.

Differences between separation and divorce

The main difference between the two concepts is that separation does not dissolve the marriage bond, which means that the spouses cannot remarry. Divorce, on the other hand, does dissolve the marriage, which means that after divorce the spouses can remarry each other or other people.

Another important difference lies in the possibility of judicial reconciliation, i.e. if a married couple is legally separated and after a certain period of time they decide to live together again, they can apply for judicial reconciliation and legally remarry (under the separation of property regime), whereas in a divorce situation this judicial reconciliation is not possible.

What happens if there are children? Is it indifferent whether they are separated or divorced?

The law does not differentiate with regard to children depending on whether the spouses opt for separation or divorce, as the procedure, rights and obligations towards the children are identical.

In both situations (separation and divorce), the parents will have to reach an agreement, otherwise the judge will decide in contentious proceedings all matters relating to parental authority, custody and guardianship, visiting and communication arrangements, alimony, use of the family home, etc. and will always do so for the benefit of the child. The parents will have the same rights and obligations regardless of the figure they choose.

What happens if one of the partners wants to remarry, and is it the same if they are separated or divorced?

As mentioned above, in order to remarry it is necessary to be divorced, being unfeasible to remarry if you are separated. In fact, when a divorce takes place, the court that processes it issues an official notice to the Civil Registry to register the dissolution of the marriage by divorce, a document that must be presented in the marriage file if the divorced person wishes to remarry.

What does the interruption of the marriage entail?

The situations covered by the legal system are de facto separation, legal separation and divorce. Therefore, the use of expressions such as ‘effective cessation of marital cohabitation’ or ‘interruption of the marital relationship’, although they are not legal concepts as such, are intended to make the facts clear and, especially if they are put in writing, could have a certain impact.

For example, if it is recorded that there has been an effective cessation of cohabitation from a certain point in time and this situation is prolonged over time, this could have repercussions for possible future claims for compensatory pensions, since case law understands that the time to request the pension was the time of separation and not when the time has passed.

If you have been asked for a divorce and do not know how to proceed, contact us.