What is a Judicial Separation?
A ‘Decree of Judicial Separation’ is a court order similar to a divorce, whereby a couple remains legally married, but their normal marital obligations cease. In other words, it is a legal separation where you are recognised by law as no longer being a couple.
There are three main effects of a Judicial Separation:
- The parties are no longer obliged to live together;
- The Court can put into effect all the powers which it has to divide the matrimonial assets in the same way that it can in relation to divorce (but not pension sharing).
- If either party dies intestate (without a will) then the surviving spouse will not benefit. You need to make a new Will stating specifically how you want them to benefit.
How do I get a Judicial Separation?
A decree of judicial separation can be granted for any of the same five grounds used for divorce:
- Unreasonable behaviour on the part of the other spouse
- Desertion by the other spouse for a continuous period of 2 years
- Separation with consent after 2 years
- Separation without consent after 5 years
How does a Judicial Separation differ from a divorce?
- The Court does not have to be satisfied that the marriage has irretrievably broken down before granting a Decree of Judicial Separation.
- There are two decrees in terms of divorce proceedings Decree Nisi and Decree Absolute. There is only one decree in relation to Judicial Separation.
- At the end of a judicial separation process, the parties remain married, but their separation is legally recognised.
What are the benefits of a Decree of Judicial Separation versus a Divorce?
- One of the parties may have strong religious or personal views about divorce. A Judicial Separation can be obtained as an alternative ‘half-way house’.
- To obtain a divorce, the parties must have been married for at least 12 months. However, this rule does not apply in the case of Judicial Separation. A Decree of Judicial Separation may be particularly beneficial where there has been a break down of the marriage within the first 12 months and both parties wish to formalise financial arrangements.
- It may be difficult to prove that there has been an ‘irretrievable breakdown’ of the marriage, which is necessary in divorce.
What powers does the court have to deal with finances in a Judicial Separation as opposed to Divorce Proceedings?
The same financial and other ancillary orders can be obtained on the occasion of Judicial Separation as on Divorce, but not pension sharing orders.
For example, if either party is reluctant to disclose details of their finances, it is possible for one party to issue proceedings and force that to happen through the Courts – just as in divorce proceedings.
Can the Courts make orders regarding children in the case of Judicial Separation Proceedings?
Yes – the Courts have the same powers to make orders in relation to children as they would in relation to divorce proceedings.
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