Legal separation is one of the three forms of divorce and is part of the family law specialty. If you and your (former) partner are married and wish to separate, you can choose between divorce, legal separation or dissolution of marriage after legal separation. The forms have many similarities, but there are also major differences. Want to know more about legal separation? You can read more about it here.
What is legal separation?
Separation from table and bed means that you remain married before the law where your (former) partner and you start living separately from each other. You no longer share table and bed and are no longer a fiscal partner. All possessions must be divided between you and (ex-)partner.
Most (former) partners who choose this form of divorce separate, but want to remain married because of their faith. Because their relationship has broken down, in time it is possible that they will have a new relationship again. With their new partner they can live together, but they are not allowed to get married. This is because legally they are still married and in the Netherlands one is not allowed to marry someone else.
Thus, a legal separation is more than living separately. If you only live separately, then the marriage remains in community of property or under prenuptial agreements. When you separate, you break them.
What are the benefits of legal separation?
Some religions and beliefs forbid divorce. Still, it can happen to anyone that a relationship no longer works and you want to separate. Legal separation offers the advantage that you are still married according to law and religion. You do not break up your marriage and thus this prohibition, but you can live separately from your (former) partner.
Others choose a legal separation because they want to be financially independent of each other. In this form of divorce, you are no longer a tax partner. You divide all your joint property and assets. After that, you are no longer financially dependent on each other.
A final reason for legal separation is that it is a godsend if you are in doubt about whether to divorce. Divorce is very final and difficult to reverse. In fact, you will then have to reenter the marriage. A legal separation is easier to reverse. You can undo it by petitioning the court. That is the last advantage that a legal separation offers.
What are the differences between legal separation and regular divorce?
There are many similarities between divorce and legal separation. For example, in both forms, you are no longer partners. However, there is also a big difference: when you divorce from table and bed, you remain officially married.
In the divorce petition process, you go through most of the same steps as in a divorce. In a regular divorce, the divorce decree is eventually entered into the civil registry of the marriage municipality. In a legal separation, this is not done. Thereby, the divorce only appears in the marital property register. As a result, you are no longer financially attached to each other, but remain married under the law.
With registered partnership, legal separation is not possible
Divorce is not possible for registered partners, this is only possible if you are married. The registered partnership can only be dissolved in the regular way.
How does the application for legal separation proceed?
The procedure of applying for a legal separation is largely the same as that of a divorce. Thus, you will also have to draw up a divorce covenant. This will include all the agreements you have made.
Are there any minor children?
In the case of minor children, a parenting plan must be drawn up. Joint parental authority remains in place. A visitation arrangement is drawn up for the children. Child and spousal support must be arranged and the assets must be divided. Think of the assets, your house, your pensions and the joint contents. The accrual of the survivor’s pension can continue.
As with a divorce, you need a lawyer to file the legal separation petition with the court. The lawyer prepares the petition and includes all the agreements made. He submits this to the court.
Are you and your soon-to-be ex-partner married in community of property?
In a legal separation, this joint community must be converted into a prenuptial agreement. This ensures that you both get your own income, pension, assets, possessions and debts. You are then no longer responsible for each other’s expenses and new debts.
Want to divorce a foreign partner?
Do you and your partner want a legal separation and does your partner not have Dutch nationality? This is an international divorce, which means that international family law applies. In an ordinary divorce, three conditions then apply, two of which are aimed at a unilateral application for divorce. However, since a legal separation is always a joint application, it will not be filed unilaterally. Therefore, only the aforementioned condition applies. As a result, only the condition that you, your partner or both of you live in the Netherlands applies.
How much does legal separation cost?
The cost of legal separation is the same as that of divorce. This is because you pay fees for the lawyer and for the judge, which are the same in both cases.
Are you considering divorce because you want to be financially independent? You can also achieve this by converting your community property marriage into a prenuptial agreement. You may achieve the same thing, but you will not have to divorce and therefore not have to pay lawyer and court fees.
Do you want to separate from table and bed because you are in doubt about the divorce? Nowadays in the Netherlands it is no longer obligatory to live together if you are married. Therefore, you can also choose to live separately from each other and remain married until you are sure if you want to divorce. This, too, can save you the cost of legal separation.
The options after legal separation
A legal separation does not have a term and therefore does not expire in perpetuity. You may choose to remain legally separated forever. You may also want to eventually divorce permanently or reverse the legal separation. This is also possible.
Convert legal separation to divorce
Permanently dissolving a marriage after you have been legally separated is possible if you have been legally separated for at least 3 years. Applying for this is the same as applying for an ordinary divorce. You will again draw up a divorce covenant and include the agreements made. In the case of a legal separation, you have already had to do this. Go through these again and see if they are still appropriate in the current situation. If you have minor children, you will need to draft a family law/divorce/parenting plan again. Your lawyer will re-file this divorce with the court. Then you do register the divorce with the municipality. This ensures that in this case you are also divorced before the law.
Many who opt for legal separation do so because they have doubts about whether they really want a divorce. If it turns out afterwards that you do want to stay together, you can. You can undo the divorce fairly easily. To do so, you must jointly file a request with the court to have an entry made in the marital property registry.
Law firm Simmelink
Do you want a legal separation? In our law firm, we can provide excellent assistance. Moreover, we are an international firm, so we can assist you in both a Dutch and an international divorce. Even if you want to undo the legal separation or still want a final divorce, you can come to us. We will then assist you. Please contact us to discuss the possibilities.
