Judicial separation – how is it different to obtaining a divorce?
Under English law, there is an option to legally separate from your spouse, which is popular for those who have a religious objection to being legally divorced, or for those who have not been married a year. Even though judicial separation does not dissolve a marriage, it means that a spouse can seek financial orders. However there are some restrictions as, for instance, the court does not have the power to make a pension sharing order within judicial separation proceedings, only a limited pension attachment order.
Grounds for Judicial Separation
The same five grounds are relied upon as they are for divorce proceedings, namely:
- the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent;
- the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent;
- the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
- the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to a decree being granted;
- the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
However, unlike divorce proceedings, the court does not contemplate whether the marriage has irretrievably broken down. In addition, there is only one decree instead of two, which is known as a decree of judicial separation. Once that decree is pronounced then the two parties are judicially separated with no obligation to live together, but they will remain married.
Procedure for Judicial Separation
Similarly to divorce proceedings, judicial separation is referred to as matrimonial proceedings which begin once a Petitioner has filed a petition at court.
The Petitioner needs to file three copies of a petition, together with the original marriage certificate, certificate of reconciliation (if they have instructed a solicitor) together with the court fee of £365. The Petitioner will file the documents at their local divorce regional centre.
Once the Respondent has been served, they must file the acknowledgement of service form at court within 7 days if living in England, but the time frame will be extended if they are living outside England and Wales. If the Respondent wishes to defend the petition then they must file answer within 21 days beginning with the date by which the acknowledgement of service form should be filed.
Judicial separation proceedings are rare and clients who wish to file such an application should be warned that there will be further expense if they wish to divorce further down the line. It should also be pointed out that the Respondent can file for a divorce during judicial separation proceedings.
In terms of the effect of a decree for judicial separation and probate, it is interesting to note that where the decree is still valid and the spouses remain separated, if one of them dies intestate then their real or personal estate simply devolves as if the surviving spouse was also dead.
If you would like to obtain further information regarding judicial separation then please do not hesitate to contact us.
Written by Sophie Capo-Bianco: [email protected]
You may also wish to read: