What is judicial separation?
We are often asked by clients to deal with a ‘legal separation’ on their behalf. English law does not provide for the granting of a legal separation as such. If you have decided to stop living with your partner, you can enter into a separation agreement or separation deed, which is a private contract that does not involve the court. A judicial separation does involve the court, and it is less common for couples to take this route. It involves the same procedures as divorce, with the couple living separately, but they will remain married or in a civil partnership.
Why would I want a judicial separation decree?
If you or your partner cannot get divorced – perhaps for religious reasons or if you have not been married for one year – a judicial separation can protect your finances or property in the same way as divorce.
How do I get one?
Just like divorce, there must be one of five main objections to the marriage.
- One party has committed adultery and the other finds it intolerable to live with them.
- One party has behaved in such a way that the other cannot reasonably be expected to live with them.
- One party has left the other for a continuous period of two years.
- The couple has lived apart for a continuous period of two years and both agree to the judicial separation.
- The couple has lived apart for a continuous period of five years and one party has decided on a judicial separation (this does not require the other’s consent).
Unlike divorce, the judicial separation does not state that the marriage has irretrievably broken down. When granted, a ‘decree of judicial separation’ is issued, which states that both parties are formally living separate and apart.
What are the benefits of a judicial separation decree?
It allows both parties to live separately with no obligation to see or live with the other. A financial settlement can be made in the same way as divorce, with a few restrictions (e.g. the court does not have the power to make a pension sharing order). A judicial separation order can be granted for both marriages and civil partnerships.
What if I want to divorce my partner afterwards?
In order to divorce your partner, new proceedings will have to be issued, although the process is usually simpler if a judicial separation order has been previously issued and both parties are satisfied with its terms.
If you would like to know more about judicial separation orders and whether one would be appropriate to your situation, please call us now on 01273 604123 and we would be happy to advise you.