The main differences: divorce and separation

Judicial separation ends the joint life of the spouses by a court judgment. The procedure of judicial separation is similar to that of divorce. However, unlike a divorce, the court judgment does not end the marriage. Separation only allows the spouses to live apart from one another for an undefined period of time. The spouses’ mutual marital connection remains.

Just like divorce, judicial separation is a status recognized by law. The instrument of judicial separation gives both spouses a period of reflection before they decide to divorce. However, since judicial separation cannot prevent divorce, the instrument is becoming increasingly irrelevant.

Herein, the most important differences between a divorce and a separation are presented, followed by a discussion of the similarities.

If you need further information on the subject of divorce or separation or would like to seek advice, our lawyers in St. Gallen, Zurich and Frauenfeld will be happy to help you.

DIFFERENCES

Divorce ends a marriage. In the event of divorce, the AHV pension of the spouses is divided in half and the ex-spouses can remarry. The surviving spouse is also no longer the heir of the deceased spouse.

In the event of a judicial separation, on the other hand, the spouses remain legally married. The obligation to support and help each other remains therefore, especially if financial problems occur. If a spouse dies during the period of separation, the right of inheritance of the surviving spouse remains. Moreover, in the event of a separation at retirement age, the AHV pension is not divided equally and there is no possibility for the parties to remarry.

After a divorce, there is, in principle, no mutual maintenance obligation between the former spouses. This obligation only exists if, as a result of the divorce, one of the spouses does not have the necessary capital to lead an adequate life.

If spousal maintenance is owed in the event of legal separation, the amount owed to the other partner is higher than in the event of divorce. This is due to the fact that spouses who separate remain married. For the duration of the marriage, the spouses are obliged to support each other financially in order to maintain their standard of living.

In the event of a divorce, the marital property regime is dissolved. In the event of a separation, however, the marital property regime is not dissolved.

COMMONalities

There are also common provisions for divorce and separation. The same legal regulations apply to everything that affects the children. This includes matters of parental care, custody, visitation rights, child support, etc.

The norms of divorce law also apply in the case of judicial separation when it comes to dividing the marital home.