De facto separation, legal separation or divorce: which is right for you?
Living apart without divorcing is possible, but the consequences differ completely depending on the route you choose. Answer these three questions to find the one that fits your situation.
De facto separation, legal separation or divorce: which is right for you?
Why are you considering separating without divorcing?
Do you and your spouse agree on the separation and its consequences?
Housing, children, support, division of assets.
Has one of you already left the marital home?
Legal separation by lawyers' deed, without a judge
If you agree on everything, you can have a legal separation agreement drafted by your two lawyers. It can only be signed once a 15-day reflection period has expired; it is then deposited with a notary, which gives it a certain date and makes it enforceable. This has been possible since the law of 23 March 2019, on the model of the amicable divorce. This out-of-court route is not available in two situations (Article 229-2 of the Code civil): if a minor child, informed of their right to be heard, asks to be heard, the mutual-consent separation continues before a judge, who approves the agreement (Article 230); if either spouse is under a protective measure, the mutual-consent route is not available.
You remain married but live apart: your assets become separate, the duty of support continues and each of you in principle keeps inheritance rights in the other's estate, unless the agreement includes a waiver of those rights (Article 301). The separation can later be converted into a divorce, but only by mutual agreement: under Article 307, a legal separation obtained by mutual consent can only be converted with both spouses' consent.
Every situation is different: this result does not replace a lawyer's advice.
Legal separation before the family court judge
Without full agreement, legal separation is requested from the family court judge (juge aux affaires familiales), following the same procedure as a contested divorce. Each spouse must have their own lawyer: a legal separation cannot be obtained without one.
From the first hearing, the judge can set interim measures: separate residence, the family home, support under the duty of support, the children's residence. The judgment then organises your separate lives, without ending the marriage.
Every situation is different: this result does not replace a lawyer's advice.
Separated without any step: you are still fully married
A de facto separation can last indefinitely, but it does not change the marriage: every marital duty remains, your matrimonial property regime still applies and nothing is set by default for the children's residence, support or what happens to the home.
The family court judge can nevertheless be asked, without a divorce, to order a contribution to household expenses (Article 214 of the Code civil) or urgent measures where a spouse seriously fails in their duties (Article 220-1), and to rule on the children's residence and support. After one year of living apart, a divorce for irretrievable breakdown can also be sought (Article 238). A legal separation or a divorce gives you a clear framework. A lawyer helps you choose the right route and have urgent measures set quickly.
Every situation is different: this result does not replace a lawyer's advice.
Taking a step back: prepare the separation before leaving
Nothing requires you to decide right away. But leaving without a framework carries risks: leaving the marital home without agreement can be held against you, and nothing is settled for you or for the children until the court has been asked to rule.
To live apart while staying married, the law provides for legal separation, which can later be converted into a divorce under Articles 306 and 307 of the Code civil. A private written agreement between spouses does not have the same effect: it does not lift the duties of marriage and is not enforceable. As regards the children, such an agreement can be submitted to the family court judge for approval. Family mediation can also help you talk things through. A first conversation with a lawyer lets you leave on the right footing.
Every situation is different: this result does not replace a lawyer's advice.
To move on with your life, divorce is the right route
During a legal separation you remain married: you cannot remarry, the duty of fidelity continues in principle and your spouse in principle keeps inheritance rights in your estate. If your aim is to turn the page, a divorce is better suited. A divorce does not remove the right to a survivor's pension: under the general scheme, a divorced former spouse is treated as a surviving spouse (Article L. 353-3 of the Social Security Code), even after remarrying. Remarriage ends it under Agirc-Arrco and, unless restored, in the civil service.
Depending on how well you get along, it can be amicable (usually one to three months) or granted by a judge. A legal separation granted by a judge on contested grounds can be converted into a divorce at the request of either spouse once it has lasted two years (Article 306). A separation obtained by mutual consent can only be converted by mutual agreement, and then with no waiting period (Article 307).
Every situation is different: this result does not replace a lawyer's advice.
A conflict that has become too serious between you and your spouse often leads straight to thoughts of divorce — but it is worth asking whether other options exist.
Can you separate without divorcing?
The answer is yes: it is possible to separate without divorcing, in what French law calls legal separation (séparation de corps), governed by Articles 296 to 308 of the Code civil.
What separating without divorcing means
A legal separation lets you and your spouse live apart without divorcing. To weigh the two routes, see our comparison of legal separation versus divorce.
It ends the duty to live together set out in Article 215 of the Code civil, whose first paragraph provides:
"Spouses mutually commit to a shared life." (Article 215, Code civil — unofficial translation)
The different types of legal separation
Just as with divorce, there are 4 types of legal separation:
The 4 types of legal separation
- Legal separation by mutual consent, through a lawyers' deed
- Legal separation on accepted breakdown of the marriage
- Legal separation for the definitive breakdown of marital life
- Legal separation for fault
How to separate without divorcing: the procedure
The court procedure for a legal separation mirrors the divorce procedure.
Since Law No. 2019-222 of 23 March 2019, it has also been possible to obtain a legal separation through a lawyers' deed, on the model of a mutual-consent divorce by lawyers' deed.
Can you obtain a legal separation without a lawyer? No: like divorce, a legal separation requires mandatory legal representation. Each spouse must have their own lawyer, whether the separation goes through court or through a lawyers' deed.
The court procedure for legal separation
It mirrors the procedure for a contested divorce. Since 1 January 2021, there is no longer a conciliation hearing or a non-conciliation order.
The claim is filed by summons (or a joint application) with the family court judge in the district of residence, with legal representation mandatory for each spouse.
At the hearing on interim measures, the judge can set the measures that apply during the proceedings (arrangements for the spouses' separate residence, use of the family home, support under the duty of support, parental authority, the children's residence and support).
The case is then prepared and judged. The legal separation is requested from the outset; a spouse who asked for a divorce may switch to a legal separation, but not the reverse. The judgment rules definitively on:
The matters decided definitively
- The spouses' surname;
- The date the legal separation takes effect;
- Use of the family home;
- Support under the duty of support, which continues between separated spouses under Article 212 of the Code civil;
- Parental authority;
- The children's habitual residence;
- Visitation and accommodation rights;
- Contribution to the children's upkeep and education.
Whatever matrimonial regime the spouses chose — community property or separate property — a legal separation always switches the couple to separation of property under Article 302 of the Code civil.
Whatever your matrimonial regime, the claim must include a proposal for settling the spouses' financial and property interests; otherwise it is inadmissible (Article 252 of the Code civil).
The lawyers'-deed procedure for legal separation
The steps of a separation by lawyers' deed
Drafting the agreement
Law No. 2019-222 of 23 March 2019 allows a legal-separation agreement to be signed as a private deed countersigned by lawyers. As with a mutual-consent divorce, this route requires each spouse to be assisted by their own lawyer and both to agree on every term of the agreement.
The reflection period and signing
Once the agreement is drafted, each lawyer must send it to their client by registered letter with acknowledgement of receipt, starting the statutory 15-day reflection period. At the end of that period, a signing meeting is held with all four parties.
Deposit with the notary
Once the agreement is signed, one of the lawyers appointed in the agreement must send it to the chosen notary within 7 days of signing, so the notary can record it in their official records within 15 days. Once this is done, the notary sends the lawyer a certificate of deposit, naming the spouses and the date the agreement was recorded. Once deposited, the agreement becomes enforceable.
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The consequences of a legal separation
The consequences of a legal separation are the same whether it goes through court or through a lawyers' deed.
They are also broadly the same as for a divorce, with a few exceptions.
The consequences in detail
A legal separation ends the duty to live together, while the spouses remain married.
In a divorce, each spouse in principle loses the right to use the other's name, unless the other agrees or the judge allows it because of a particular interest for that spouse or the children; for a legal separation, the principle is reversed.
Each spouse keeps the right to use the marital name, unless the legal-separation agreement or a judgment prohibits it.
A legal separation always triggers separation of property.
Spouses already married under a separate-property regime need take no further step.
Spouses married under a community-property regime, however, must divide the matrimonial regime; a notary is required if real estate is involved.
Note that, between the spouses, separation of property takes effect from the date of the court claim (or, for a lawyers' deed, from the date the agreement becomes enforceable, unless it sets another date): an asset bought by either spouse after that date is treated as that spouse's own property, not as joint property.
The surviving spouse keeps their inheritance rights. In a legal separation by mutual consent, however, the agreement may provide that the spouses waive these rights.
The duty of support between spouses continues even during a legal separation, entitling the spouse in need to receive support payments from the other.
Article 303 of the Code civil also provides:
"However, where the paying spouse's assets allow it, the support payment is replaced, in whole or in part, by a lump-sum payment, under the rules of Articles 274 to 275-1, 277 and 281. If that lump sum becomes insufficient to meet the recipient's needs, they may request a top-up in the form of a support payment." (Article 303, Code civil — unofficial translation)
While the duty to live together ends with a legal separation, the other duties of marriage — fidelity, support and assistance, set out in Article 212 of the Code civil — remain.
The measures concerning the children are the same as in a divorce.
A legal separation can nonetheless rule out the presumption of paternity, given the absence of cohabitation.
How long can you stay separated without divorcing?
There is no maximum length. A de facto separation — living apart with no legal step — as well as a legal separation, can last for years, even a lifetime. A legal separation never lapses simply through the passage of time: it ends only through reconciliation, death, or divorce.
The two-year mark is not a limit: it is the point from which either spouse can request conversion into a divorce of a legal separation granted on contested grounds (Article 306 of the Code civil), though neither is obliged to; a separation obtained by mutual consent can only be converted by mutual agreement (Article 307).
De facto separation or legal separation?
A de facto separation does not change the marriage: the spouses remain bound by every duty of marriage (fidelity, support, contributing to household expenses), nothing is set by default for the children or the home, and a spouse who leaves without agreement or good reason may be accused of abandoning the family home. To formalise the separation, secure a support payment and organise the children's lives without divorcing, you need a legal separation — or to apply to the family court judge for measures. To choose between the three routes, see our comparison of separation versus divorce.
The end of a legal separation
Unlike a divorce, a legal separation is not a permanent state.
It ends in three cases:
- If it is converted into a divorce;
- If you resume living together;
- If one of you dies.
Converting a legal separation into a divorce
Article 306 of the Code civil provides that a legal-separation judgment is converted as of right into a divorce judgment, at the request of either spouse, once the separation has lasted 2 years.
Where the legal separation was itself granted by mutual consent, conversion can only take place by mutual agreement (Article 307 of the Code civil), through a mutual-consent divorce or a joint application.
On conversion, the ground of the legal separation (for example, fault) becomes the ground of the divorce (Article 308 of the Code civil): there is no new fault to prove.
Where the legal separation was not obtained by mutual consent, the request for conversion is brought before the family court judge by summons (or by joint application).
This procedure requires mandatory legal representation, meaning you must be assisted or represented by a lawyer.
Resuming life together
Article 305 of the Code civil provides:
"Voluntarily resuming life together ends the legal separation.
To be effective against third parties, this must either be recorded by a notarial deed or declared to the registrar. A note is made in the margin of the spouses' marriage certificate and of their birth certificates.
Separation of property continues unless the spouses adopt a new matrimonial regime under the rules of Article 1397." (Article 305, Code civil — unofficial translation)
To be effective against third parties, resuming life together must therefore be recorded by a notary or declared to a registrar at the town hall.
Death of one of the spouses
Death ends a legal separation.
You lose the status of "legally separated" and become, in the eyes of the law, a widow or widower.
The procedure for a legal separation and its consequences are broadly the same as for a divorce, but it allows spouses to live apart without divorcing.
For advice on choosing between a legal separation and a divorce, or to start the procedure, feel free to contact DAF Darmon Avocats Famille.
Separating without divorcing: frequently asked questions
It is a measure that allows spouses to live apart without divorcing: it ends the duty to live together, but the marriage itself continues (Articles 296 to 308 of the Code civil). The duties of fidelity and mutual support remain, and it always triggers separation of property (Article 302 of the Code civil).
It follows the same four grounds as divorce (mutual consent, acceptance, definitive breakdown of marital life, fault). Where the spouses fully agree, it can be done by a private deed countersigned by lawyers and deposited with a notary (with a 15-day reflection period). Otherwise, the claim is filed with the family court judge; since 1 January 2021, there is no longer a conciliation hearing.
By the spouses voluntarily resuming life together (to be effective against third parties, it must be recorded by a notarial deed or declared to the registrar), by the death of one spouse, or by conversion into a divorce: at any time by mutual agreement (Article 307 of the Code civil), or, for a legal separation granted by a court judgment, at the request of either spouse once it has lasted two years (Article 306). A legal separation obtained by mutual consent can only be converted by mutual agreement (Article 307).
A legal separation is a status of the couple, pronounced by a judge or recorded by agreement: the spouses remain married but stop living together. Separation of property is a matrimonial regime that governs ownership of each spouse's assets. A legal separation automatically switches the couple to separation of property, but a couple can be married under a separation-of-property regime without being legally separated.
You may live with someone else, but you remain married: you cannot remarry before divorcing. The duty of fidelity technically remains, though case law applies it flexibly once the separation has been pronounced. As a rule, a child born of a new relationship does not benefit from the husband's presumption of paternity, given the absence of cohabitation.
No. Like divorce, a court legal separation requires mandatory legal representation: each spouse must have their own lawyer. Where the spouses fully agree, a legal separation by mutual consent is done through an agreement countersigned by both lawyers and then deposited with a notary, with no judge involved, subject to a 15-day reflection period. This route is closed if a minor child asks to be heard by the judge or if a spouse is under a legal protection measure.
There is no maximum length. A de facto separation (living apart with no legal step) or a legal separation can last for years, even a lifetime. A legal separation never lapses simply through the passage of time: it ends only through reconciliation, death, or divorce.
A de facto separation simply means no longer living together, with no formal step: it does not change the marriage, every duty between the spouses remains, and nothing is set by default (children's residence, support, housing). The family court judge can nevertheless be asked, without a divorce, to order a contribution to household expenses (Article 214 of the Code civil) or urgent measures where a spouse seriously fails in their duties (Article 220-1). A legal separation is pronounced by a judge or recorded by a lawyers' agreement: it officially authorises living apart, puts the couple under separation of property, and sets the terms for the children and between the spouses.
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"Throughout my divorce (1 year) he was available around the clock, evenings, weekends, even during holidays."
"You were there to smooth things over just as much as when we needed to be defended."
"Excellent support despite the distance (Australia/Paris) and the language barrier."
"Maître Darmon is caring and attentive throughout the whole procedure."
