Judicial Separation is a formal separation which is sanctioned by the court. It enables the court to make orders about the division of money and property but does not actually terminate the marriage. Judicial Separation is sometimes, although rarely, relied on as an alternative to divorce e.g. for those who have a religious or moral objection to divorce or where there might be a financial benefit to not divorcing e.g. where there is a significant disparity in the ages of the parties and their respective pension provision and there are therefore benefits to remaining married. Unlike divorce, you can seek a Judicial Separation at any time after marriage – you do not have to wait until you have been married for one year.
Judicial Separation can be granted for any of the grounds which would justify a divorce (unreasonable behaviour, adultery, 2 years separation with consent etc), but it is not necessary to prove that the marriage has irretrievably broken down. 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.
A decree of Judicial Separation has three main effects. Firstly, the spouses are no longer obliged to live together. Secondly, the court can exercise all the powers which it has to divide the matrimonial property (excluding pensions) just as it can in the case of a divorce. Thirdly, the decree operates just like a divorce in terms of its effect on any 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.
Because the marriage hasn’t terminated, a Judicial Separation will prevent either party from remarrying until a divorce is obtained. You can later apply for a divorce if circumstances suggest that this would be a good course of action to formally bring the marriage to an end.
Judicial Separation does not have the same affect 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 pursuing Judicial Separation as opposed to divorce.
Specialist advice should always be sought upon separating from your spouse, including the benefits and disadvantages of pursuing either divorce or Judicial Separation, depending on your particular circumstances.