If you’ve recently separated from your spouse or civil partner you may be considering divorce or dissolution of your civil partnership. However, for some couples, they may not want to divorce/ dissolve the civil partnership but do still require the Court to be able to determine their financial position, if that is the case, you can consider judicial separation.
What does judicial separation mean?
A judicial separation is a legal separation which is sanctioned by the court. It ratifies the separation and enables the court to make financial orders similar to those made on divorce or dissolution.
When can you apply for judicial separation?
You can apply to Court for judicial separation on the same basis you could file for a divorce or apply to dissolve a civil partnership, although you will not be required to show that the marriage or civil partnership has irretrievably broken down. The grounds for separation, as with divorce or dissolution, include adultery, unreasonable behaviour, desertion for a period of at least two years, two years’ separation with consent or five years’ separation. However, at the end of the proceedings you do remain married.
How does judicial separation differ to divorce?
Unlike divorce or dissolution of a civil partnership, you do not need to prove irretrievable breakdown of the marriage or union, and you will not need to have been married or in a civil partnership for more than one year to be eligible to apply. Also, whilst a divorce or dissolution require two decrees from the court — decree nisi and decree absolute, or a conditional and final order — a legally sanctioned separation requires one decree of judicial separation.
Once a decree of judicial separation has been granted, you are formally separated but do will remain married so, unlike divorce or dissolution, you will not be permitted to remarry or enter into a new civil partnership.
It is also worth noting that a judicial separation does not have the same effect on pensions as a divorce, as you remain married. This means that the court cannot make pension sharing orders as part of the financial orders in judicial separation cases.
When is judicial separation appropriate?
There are several reasons why judicial separation may be appropriate, including where one or both parties have religious or moral objections to divorce or dissolution. In other cases, judicial separation may be preferable to officially bringing a marriage or civil partnership to an end because a year has not yet passed since the wedding or civil ceremony. Conversely, more time may be needed to consider whether divorce or dissolution is the right decision.
Are there any other alternatives?
An alternative to judicial separation, would be to look to resolve the financial aspects of your separation voluntarily by way of a Deed of Separation. This is not a court order, so is not ratified by the court, but can confirm the financial settlement you have reached between yourselves, and can provide for an Order to be made in the same terms in any subsequent divorce.
For more information on judicial separation, divorce or dissolution of a civil partnership, or separation agreements, expert advice should be sought from a family law specialist.
Legal disclaimer
The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.