Różnice między rozwodem a separacją

„Od ponad roku pomiędzy mną a małżonką nie układa się najlepiej, dochodzi do ciągłych kłótni i awantur. Oboje darzymy się nadal uczuciem, ale nie potrafimy zażegnać konfliktów, zastanawiamy się nad separacją, stąd pytanie jakie są różnice międzī rozwodem a separacją?”.

Zasadnicza różnica między rozwodem a separacją polega na tym, że rozwód powoduje DEFINITYWNE rozwiązanie związku małżeńskiego, natomiast separacja nie powoduje rozwiązania małżeństwa, a jedynie wprowadza w stan zawieszenia pewne prawa i obowiązki pomiędzy małżonkami.

Sąd orzeka rozwód, jeżeli między małżonkami nastąpił zupełny i trwały rozkład pożycia, a separację wtedy, jeżeli między małżonkami nastąpił zupełny rozkład pożycia. Oznacza to, że dla orzeczenia separacji nie musi występować przesłanka trwałego rozkładu pożycia.

Zarówno o rozwodzie, jak i separacji sąd orzeka na żądanie, czyli na wniosek któregoś z małżonków.

Zarówno w sprawie o rozwód, jak i w sprawie o separację – sąd – na wniosek jednej ze stron MOŻE orzec o winie za rozpad małżeństwa, ale rozwód co do zasady nie jest dopuszczalny, jeżeli żąda go małżonek wyłącznie winny. Takie ograniczenie nie występuje przy orzeczeniu separacji, co oznacza, że sąd orzeka separację nawet, jeżeli występuje o nią małżonek wyłącznie winny.

Sąd może odstąpić od orzekania o winie na zgodne żądanie małżonków.

Orzeczenie separacji nie jest dopuszczalne jedynie wtedy, jeżeli wskutek niej miałoby ucierpieć dobro wspólnych małoletnich dzieci małżonków albo jeżeli z innych względów orzeczenie separacji byłoby sprzeczne z zasadami współżycia społecznego. W przypadku rozwodu, jego orzeczenie nie jest dopuszczalne, jeżeli rozwodu żąda małżonek wyłącznie winny lub wskutek rozwodu miałoby ucierpieć dobro wspólnych małoletnich dzieci małżonków albo jeżeli z innych względów orzeczenie rozwodu byłoby sprzeczne z zasadami współżycia społecznego.

Podkreślenia wymaga, że jeśli jeden z małżonków żąda orzeczenia separacji, a drugi orzeczenia rozwodu i żądanie to jest uzasadnione to sąd orzeka rozwód. Jednak, jeśli orzeczenie rozwodu nie jest dopuszczalne, a żądanie separacji jest uzasadnione to sąd orzeka separację.

Ponadto, orzeczenie rozwodu w przeciwieństwie do orzeczenia separacji zezwala na zawarcie nowego związku małżeńskiego, a także umożliwia powrót do nazwiska noszonego przed zawarciem związku małżeńskiego. Orzeczenie rozwodu co do zasady nie nakłada obowiązku wzajemnej pomocy między byłymi małżonkami, natomiast orzeczenie separacji taki obowiązek jak najbardziej wprowadza.

Zarówno orzeczenie rozwodu, jak i separacji powoduje powstanie między małżonkami rozdzielności majątkowej i nie może być ona zmieniona w drodze umowy. Ustrój rozdzielności majątkowej polega na tym, że każdy z małżonków zachowuje zarówno majątek nabyty przed powstaniem rozdzielności, jak i nabyty później oraz zarządza całym swoim majątkiem samodzielnie. Nie ma małżeńskiego majątku wspólnego – każdy z małżonków ma swój majątek osobisty.

Ponadto, na wniosek jednego z małżonków sąd – zarówno w sprawie o rozwód, jak i w sprawie o separację – może dokonać podziału majątku wspólnego.

Sąd rozpoznaje sprawę o rozwód, jak i separację w procesie i w obu sprawach wydaje wyrok. Wyjątek dotyczy separacji, w sytuacji kiedy strony nie posiadają dzieci i są zgodni co do separacji – wówczas Sąd wydaje postanowienie.

Pozew o separację podlega opłacie w wysokości 600,00 zł – tak jak w przypadku rozwodu. Jeżeli jednak separacja ma być orzeczona na zgodny wniosek małżonków – opłata wynosi 100,00 zł. W przypadku, gdy opłata nie zostanie wniesiona osoba składająca pozew/wniosek zostanie wezwana do jej uiszczenia.

Orzeczenie separacji nie wyklucza orzeczenia w przyszłości rozwodu.

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