Judicial separation


What is a judicial separation?

A judicial separation is a formal separation which is sanctioned by the court. It is more than a couple deciding to live apart and it is about more than just ratifying the separation. It enables the court to make orders about the division of money and property, similar to the orders which can be made on divorce, without actually terminating the marriage. 

Judicial separation UK

As with divorce proceedings, obtaining a judicial separation is done by the court. We can provide you with information about judicial separations in England & Wales. However, obtaining a judicial separation in Scotland or in Northern Ireland is different. We can refer you to expert lawyers in those jurisdictions if necessary.

Why obtain a judicial separation?

A judicial separation is not usually a sensible course for most people, because at the end of the process they are still married to each other. However, sometimes it is relied upon by couples who have a religious or moral objection to divorce or where they want to resolve financial issues on separation but have not yet been married for a year or where there might be some financial benefit in not divorcing, eg where there is significant disparity in the ages of the couple and their respective pension provision.

How does a judicial separation differ from a divorce?

Judicial Separations differ from divorce proceedings in a number of ways:-

First, unlike a divorce, you can seek a judicial separation at any time after marriage. You do not have to wait until you have been married for a year.  

Secondly, you do not have to prove that the marriage has broken down irretrievably. You can simply rely on the same "facts" which would justify a divorce but without having to show that the marriage has broken down irretrievably. 

Thirdly, there are not two decrees as there are in divorce (decree nisi and decree absolute) – there is just one decree pronouncing the judicial separation once the court is satisfied that the requirements are met. 

Fourthly, a judicial separation does not have the same effect on pensions as divorce, as the parties are technically still married. This means you can’t obtain a pension sharing order. This is often the biggest disadvantage to using judicial separation proceedings as opposed to divorce. 

Fifthly, because the marriage isn’t terminated on a judicial separation, neither party will be free to remarry until a divorce is obtained.

However, obtaining a judicial separation does not prevent either party from applying for a divorce later on. 

What is the legal effect of a judicial separation?

A decree of judicial separation has three main effects. First, it gives the court the power to make the same financial orders as it could make on a divorce, with the exception that it cannot make a pension sharing order. Secondly, the decree operates just like a divorce in terms of its effect on a Will. The spouse can no longer take any benefit unless a new Will is made specifically stating that it is to be the case that they can benefit from the Will.  Thirdly the spouses are no longer obliged to cohabit with each other, though this is of little practical meaning, given that one spouse cannot legally force the other to live with them.

Before you apply for a judicial separation

Unlike a divorce you can apply for a judicial separation at any time after the wedding. You do not have to wait for a year.  

You will need your original marriage certificate or a certified copy as this will be lodged at court when the process is started. 

There are also certain jurisdictional requirements as to habitual residence and/or domicile. If you think this may be an issue, please read our "Forum Choice". 

Current grounds for judicial separation

Unlike a divorce you do not have to prove that the marriage has "broken down irretrievably".  You only have to prove one or more of the same five "facts" which are relied upon for a divorce. These are:-

  • your spouse has committed adultery and you find it intolerable to live with your spouse (adultery);
  • your spouse has behaved in such a way that you cannot reasonably be expected to live with them (unreasonable behaviour);
  • your spouse has deserted you for a continuous period of at least two years immediately preceding the presentation of the judicial separation petition (desertion);
  • you have lived apart for a continuous period of at least two years immediately preceding the presentation of the judicial separation petition and your spouse consents to the judicial separation being granted (2 years separation by consent);
  • you have lived apart for a continuous period of at least five years immediately preceding the presentation of the judicial separation petition (5 years separation).

Preparation of the judicial separation papers

Whilst it is possible to file for a judicial separation online on a "do-it-yourself" basis, obtaining advice from a specialist family law practice will ensure that the judicial separation petition and other documents are properly completed and that you receive the correct judicial separation legal advice.  

The clerks at the divorce court can help, but they cannot give you legal advice on your rights nor on how to complete the judicial separation documents. Problems can arise if the forms are incorrectly completed. 

Judicial separation procedure

The judicial separation is started by one spouse (then called the "petitioner") lodging a document called a petition with the court, along with the relevant court fees. The petition sets out the details of the marriage, the parties, any children and the grounds for the judicial separation. 

The court "issues" the petition, stamping it and sending a copy to your spouse (then called the "respondent"). If there is a named third party they are called the "co-respondent".

Acknowledgement of service

When the respondent receives the petition, they are required to fill in a form, called an acknowledgement of service, to confirm that they have received it and send this back to the court within 7 days. The court forwards a copy to the petitioner.

Contested and uncontested judicial separation

If the respondent agrees to the judicial separation, it will be called an undefended or uncontested judicial separation. If the respondent does not agree, then it will be called a defended or contested judicial separation. The respondent will then have a further 21 days to file an Answer at court. 

Confirming the petition

The petitioner swears an affidavit (the legal term for a statement under oath), confirming the contents of the petition, which is then sent to the court.

Decree of judicial separation

The court checks the judicial separation documents and if, it is an uncontested divorce and the documents are approved, will fix a date for pronouncement of the decree of judicial separation.  The decree is an important document and should be kept in a safe place. 

How long does it take to get a judicial separation?

If everything is agreed, and both parties complete and return the documents promptly, the court will normally take between 4 and 6 months to process the judicial separation from start to finish. However, it may take longer to process the resolution of other issues. 

What other issues need to be dealt with?

There may be disagreements over the children or over claims for judicial separation financial orders or child support.
 
We will always try to resolve these either by negotiated agreement between solicitors, or by collaborative law or by mediation.