Judicial separation an alternative to divorce

It has recently been reported in the press that a woman involved in negligence proceedings against her former solicitors has been unsuccessful in claiming that they were negligent for failing to advise her that a divorce would inevitably end her marriage. As a Roman Catholic, she claimed her former solicitors had failed to take proper regard of her firmly held religious beliefs as to the sanctity of marriage and that, instead, they should have advised her to pursue judicial separation proceedings or at least not pursue the divorce proceedings through to a clean break settlement. Whilst her claim was rejected by the court, the case highlights an importance for those involved in separation to be fully aware of and understand all of their options when it comes to formalising their arrangements legally.

What is judicial separation?

Whilst judicial separation proceedings are rare compared to those for a divorce, they are an alternative option in cases where there are strong moral objections, cultural reasons or religious beliefs for a party to the marriage not wanting to obtain a divorce.

When a decree of judicial separation is obtained, the parties remain married as the decree of judicial separation does not dissolve their marriage (unlike a decree absolute in divorce). Instead, the decree of judicial separation simply relieves the parties of their duty and obligation to live together.

If either party subsequently wishes to end their marriage then a petition for divorce can be filed at a later date and, if a decree of judicial separation has already been granted, the party obtaining it is not prevented from filing a divorce petition on the same or substantially the same facts. This means the fact used in judicial separation proceedings can subsequently be used as proof of a fact in later divorce proceedings.

Furthermore, it is possible for the respondent in judicial separation proceedings to file, in any event, a petition for divorce after he or she has received the other parties’ judicial separation petition.

Grounds for judicial separation

Unlike in a divorce, the petitioner does not need to show that their marriage has broken down irretrievably when filing for a decree of judicial separation. However, the grounds on which a decree of judicial separation can be obtained are the same as the five facts that need to be proved to obtain a divorce, namely:

• Adultery
• Unreasonable behaviour
• Desertion for a period of at least two years
• Two years’ separation with consent
• Five years’ separation

Although the five facts are the same, there are some slight procedural differences between a divorce and judicial separation when it comes to cases relying on two or five years’ separation. If this applies you should seek advice from a specialist family law solicitor such as the team here at Anthony Gold.

Differences between divorce and judicial separation

The procedure for defended and undefended judicial separation proceedings is broadly similar to that of defended and undefended divorce proceedings. However, there are some differences between divorce and judicial separation as follows:-

1. As stated above judicial separation, unlike divorce, does not bring about a termination of the marriage and the parties will remain married to one another.
2. In judicial separation proceedings the court does not have to consider whether the marriage has irretrievably broken down whereas it must do so when a petition for divorce is presented.
3. Judicial separation can be applied for at any time after the marriage, whereas a divorce petition cannot be filed until after the expiry of one year from the date of the marriage.
4. In stark contrast to a divorce, there is only one stage to the decree of judicial separation, whereas in a divorce there is a two-stage process of decree nisi followed by decree absolute. In judicial separation there is no requirement for a decree nisi to be pronounced in the first instance and, instead, the decree will simply be the final decree of judicial separation.
5. Certain provisions of the Matrimonial Causes Act 1973 as applied to divorce do not apply to judicial separation petitions when dealing with cases relying on two or five years’ separation.
6. Judicial separation does not affect existing Wills. Where a decree of judicial separation has been granted and the parties remain separated, if either dies intestate, his or her property will devolve as if the other spouse was already dead, so the surviving spouse will not benefit. If you are involved in judicial separation proceedings, or are considering this option, you should obtain advice from a specialist solicitor as to preparing a Will or amending an existing Will and the team here at Anthony Gold are well-equipped to help.
7. Whilst an application for financial remedies may be applied for in judicial separation in the same way as divorce, the courts powers are somewhat more restricted. For example, the court cannot make a pension sharing order upon judicial separation – only a pension attachment order which is more limited.

This article was written by Shelley Cumbers. If you have separated, or are contemplating separation, and wish to obtain advice as to your legal position and options for divorce or judicial separation please email Kim Beatson or call 020 7940 4060. If you are unable to reach an agreement with your partner or former partner in relation to the separation and financial arrangements, including issues covered above, our experienced family law team can assist you in trying to resolve these issues through mediation, collaborative law, solicitor negotiations or court proceedings.