A Decree of Judicial Separation is a court order in which a couple’s marital obligations cease despite them remaining legally married. This form of separation means that they are longer recognised by law as being a couple without having to go through the process of a divorce.
There are various reasons why a couple might not want to get divorced while still wanting to officially be separated, for example if their religious or cultural beliefs preclude divorce, or if they have been married for less than 12 months, or if the reasons for irretrievable breakdown of the marriage are difficult to prove.
Another very good reason for choosing Judicial Separation over divorce is if a couple are older, neither wishes to remarry, and there is a substantial pension that would be significantly reduced by divorce. In this case, one party might potentially lose out on the benefit of a survivor’s pension.
Judicial Separation has three main effects:
- The couple will no longer be obligated to live together.
- Matrimonial assets can be divided up by the Court (except pension sharing).
- If either party dies without a will (intestate), the surviving spouse will not be eligible to benefit. New Wills should be drawn up by both parties.
To apply for a Decree of Judicial Separation, a petition must be submitted based on the same five grounds for divorce: adultery, unreasonable behaviour, desertion (for a period of 2 years), separation with consent (in which the couple has lived apart for 2 years) or separation without consent (in which the couple has lived apart for 5 years). However, in contrast to a divorce, a couple does not need to prove that their marriage has irretrievably broken down to be awarded a Judicial Separation, and instead of the two decrees involved in divorce proceedings (Decree Nisi and Decree Absolute), there is only one decree pronouncing the Judicial Separation.
The Courts still have the power to issue proceedings if either party is unwilling to fully disclose details of their finances and assets, or if there are any other serious disputes relating to the separation that cannot be resolved. If there are children involved, the Courts can also make orders in relation to children’s arrangements and maintenance.
A Decree of Judicial Separation can be preferable in various circumstances, particularly if there has a been a breakdown of the relationship within the first 12 months of marriage and the couple want to finalise their financial arrangements without having to wait to apply for divorce. It would then be possible for the parties to apply for divorce after they have lived apart for two years, providing that they both consent. It’s important to note, however, that Judicial Separation is not an easy alternative or a ‘quickie divorce’. In all cases, cooperation, negotiation, and collaboration are vital for an amicable separation, and if a couple is thinking of using Judicial Separation as a temporary solution to divorce, they may find themselves losing out on certain rights and benefits, or involved in further costly proceedings down the road.
It’s also worth noting that it’s not possible to remarry after Judicial Separation without applying for a divorce!
For more advice and information on the different types and processes of separation, it’s best to speak to an experienced solicitor who will be able to give you a clearer idea of how we can help you. To book a free 45-minute consultation with one of the family lawyers at Frances Lindsay & Co email us on firstname.lastname@example.org or call 01628 634667.