A marital crisis can happen to virtually anyone, and the breakdown of a marriage is not uncommon. Many couples face the choice between divorce or legal separation. But what exactly is the difference? And what do they have in common?
Breakdown of Marital Cohabitation
In both divorce and legal separation, we speak of a complete and permanent breakdown of marital cohabitation. What does that mean in practice? A complete breakdown means the loss of physical, financial, and emotional bonds between spouses. A divorce can only be granted if the breakdown is both complete and permanent—meaning there is no realistic possibility of saving the marriage or restoring the relationship to its former state.
What Is Legal Separation?
Legal separation does not dissolve the marriage but merely suspends the spouses’ rights and duties toward each other. It is often pursued when there is still hope of reconciliation. Legal separation is adjudicated by the District Court (Sąd Okręgowy) in the district where the spouses reside. If they do not share a place of residence, the competent court is the one for the domicile of either spouse.
A court will not grant legal separation in two cases:
if it is contrary to the principles of social coexistence;
if it would harm the minor children of the marriage.
What Is Divorce?
Divorce, on the other hand, is a court ruling declaring the legal and final end of a marriage. Upon the court’s ruling, the marriage ceases to exist in the eyes of the law. Either spouse may file for divorce. The court may rule without assigning blame (if both parties agree to end the marriage) or assign blame to one of the spouses (e.g., in the case of infidelity). As with legal separation, the court must establish a complete and permanent breakdown of the marital relationship.
Divorce vs. Separation – Key Differences:
1. Mutual Assistance
Spouses who are legally separated are still obliged to provide mutual assistance (e.g., financial or care in case of illness), if justified by fairness. This obligation does not apply after a divorce.
2. Spousal Support
In both divorce and separation proceedings, the court may impose a maintenance (alimony) obligation on one spouse toward the other.
3. Marital Property Separation
Legal separation results in the establishment of separate property regimes between spouses, which cannot be modified by contract. From that moment on, each spouse is independently responsible for their debts. Upon request, the court may divide the joint property. The same applies to divorce.
4. Child Custody and Support
In both separation and divorce, the court must decide on all matters relating to minor children, including parental authority, visitation, and child support. It may also limit one parent’s authority depending on the circumstances.
5. Inheritance Rights
A court-ordered separation excludes the spouses from inheriting from each other under statutory law, just like divorce. They also lose the right to claim a reserved portion (legitime). An exception is made for testamentary succession—if a spouse is named as heir in a will, legal separation does not invalidate that right.
6. Remarriage and Surname Change
A legally separated spouse may not remarry (doing so would constitute bigamy) and cannot change their surname to a previous one. After divorce, a spouse may revert to their former surname by submitting a declaration to the Civil Registry Office within three months of the divorce becoming final.
Mediation in Divorce and Separation Cases
Mediation may be initiated by the court or at the request of the spouses—with mutual consent. If the court sees a possibility of reconciliation, it may direct the parties to mediation.
Couples may also choose mediation to resolve specific disputes, such as child support, parental authority, custody arrangements, or property matters.
When facing marital problems, we are often confronted with difficult questions that are not easy to answer. Our law firm understands how emotionally challenging these situations can be and is here to support you through them. We will help you choose the best path forward and guide you through the entire process—whether it be divorce or legal separation.
