What is the difference between de facto separation and legal separation

What is the difference between de facto separation and legal separation

What effects does leaving home without a court order have? When is the community property suspended and the obligation of fidelity interrupted? Anyone who wants to end their marriage must go through a phase of separation before getting a divorce and permanently closing the relationship with their spouse. However, simply leaving the family home, even by mutual agreement, is not sufficient to be formally considered separated. Such an action has no legal value and, in fact, can further complicate matters. It requires a court order that authorizes and regulates various aspects, including those concerning any children. So, what is the difference between de facto separation and legal separation?

De facto separation is the aforementioned situation where both spouses choose to cease cohabitation, with one of them moving to another residence. It is important that this is done by mutual agreement, as otherwise, the spouse leaving the marital home could be accused of abandoning the marital home. This condition does not require any authorization from the court, which means it does not have any legal effects. Therefore, the obligations of fidelity and mutual moral and material support established by marriage still remain.

On the other hand, legal separation, whether consensual or judicial, is determined by a court order that:

  • Authorizes each spouse to live separately.
  • Regulates both personal and financial aspects, including those related to the children.

In the court order, if deemed necessary by the judge, the right to maintenance for the economically weaker spouse and children can be established.

Another difference between de facto separation and legal separation is that the former does not pave the formal path to divorce, while the latter does. In order to obtain the final dissolution of the marital relationship, there must first be a period of legal separation rather than a de facto separation.

Legal separation can be either consensual, if the spouses reach an agreement on the end of their relationship and all economic and financial aspects, or judicial, if there is no agreement and it becomes necessary to involve a court to determine the conditions.

These are the main differences between de facto separation and legal separation in terms of their implications and the procedures involved in each case.

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