Legal separation

What is legal separation?

Legal separation is a legal measure where partners remain married by law but live separately. The community of property is dissolved and partners are no longer fiscal partners. All assets are divided, but the marriage itself formally remains in effect.

This distinguishes legal separation from a divorce, where the marriage is fully dissolved and registered in the civil status records. In a legal separation, only a notation is made in the matrimonial property register.

Legal separation is only possible for married partners. This route does not exist for a registered partnership.

Why do partners choose legal separation?

There are several reasons to choose this route:

Religious or ideological considerations

Some religions or beliefs prohibit divorce. Legal separation makes it possible to live separately while the marriage formally remains intact.

Financial independence

Partners who wish to be financially independent of each other but do not want a final divorce can dissolve the community of property through legal separation. After that, they are no longer liable for each other’s new debts.

Doubt about the separation

Legal separation is easier to reverse than a divorce. Partners who have doubts about a final divorce can choose this route as an intermediate step. Furthermore, in the Netherlands, it is no longer mandatory to live together if you are married, making living apart possible without a legal step.

What are the consequences of legal separation?

Assets

The community of property is dissolved. All assets and debts are divided. Partners are then no longer liable for each other’s new debts and each has their own assets. If you were married in community of property, this is converted into a prenuptial agreement.

Fiscal partnership

After the legal separation, partners are no longer fiscal partners. This has consequences for income tax returns, tax credits, and allowances. Depending on the situation, tax advice is recommended.

Alimony

Just as with a divorce, agreements can be made regarding spousal and child support. The amount depends on financial capacity and need.

Children

In the case of minor children, a parenting plan is mandatory with agreements on custody, residence, and child support. Joint parental authority remains in principle.

Marriage remains in effect

You remain legally married. Remarriage is not possible as long as the legal separation has not been converted into a final divorce.

How does the procedure work?

The procedure is largely the same as that of a divorce:

1. The lawyer prepares a petition and submits it to the court.
2. A divorce settlement agreement is drawn up with agreements on assets, alimony, and, if applicable, the parenting plan.
3. In the case of minor children, a parenting plan is included as an attachment.
4. The judge assesses the request and issues a ruling.
5. The ruling is registered in the matrimonial property register. The separation is not registered in the civil status records.

Unlike a divorce, a legal separation is always a joint request. A unilateral application is not possible.

International situations

When one of the partners has a foreign nationality or lives abroad, it involves an international situation. For a legal separation, it then applies that you, your partner, or both of you must live in the Netherlands. You can read more about the rules for cross-border situations on the international family law page.

What are the options thereafter?

Converting to a final divorce

After at least three years of legal separation, the marriage can be definitively dissolved. The procedure then follows that of a regular divorce: a new settlement agreement is drawn up and the divorce is registered in the civil status records.

Reversing legal separation

If partners decide to continue together after all, the legal separation can be reversed. To do so, both submit a joint request to the court for a notation in the matrimonial property register.

Remaining legally separated forever

There is no time limit attached to a legal separation. Partners can also choose to remain in this state forever.

Based on Real Cases

In one case, Simmelink Lawyers assisted a couple who, due to ideological considerations, chose legal separation instead of a full divorce. The core of the case lay in the division of the joint home and the agreements regarding the children. By carefully preparing the procedure and drafting a clear settlement agreement, the partners were able to arrange their situation legally without dissolving the marriage. Every situation requires its own assessment.

Written by Carla Simmelink, family law attorney at Simmelink Lawyers.

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