Judicial separation: What’s it all about?

Earlier this year, Jodie Kidd hit the papers for a ’quickie divorce’ less than a year into the marriage.

In fact this was yet another case of an oversimplification of family law – it is simply not possible for spouses to divorce if they have been married for less than one year. A ’quickie divorce%27 only really exists in the realm of the tabloids.

What actually happened was that Jodie Kidd’s ex, David Blakeley, applied for a decree of judicial separation, which can be granted if the marriage has not made it to the first anniversary.

What is judicial separation?

Often referred to as a ‘legal separation’, judicial separation is an alternative to divorce and is the legal process by which the court declares that a couple are legally separated. Notably, the decree of judicial separation does not dissolve the marriage; thus the couple remain married even after the decree. Although the grounds for a decree of judicial separation are the same as the grounds for divorce, it is not necessary to show that the marriage has broken down irretrievably.

A decree of judicial separation has the following effect:

• The spouses are no longer obliged to live together
• The court can exercise all the powers which it has to divide the matrimonial finances
• The couple will need to consider their estate planning: if a spouse dies intestate while there is a continuing decree of judicial separation the living spouse will not receive anything. Parties to a decree of judicial separation are advised to make a new will following the decree of separation.

Reasons for judicial separation

Judicial separation tends to be favoured by couples who are opposed to divorce, typically for religious grounds, but who no longer wish to live together as husband and wife. One of the differences between divorce and judicial separation is that there is an absolute bar on divorce proceedings if the couple have not been married for one year.

Judicial separations have no such requirement. If couples have come to the realisation that the marriage is not working, they may apply for a decree of judicial separation in order to get a kickstart on dealing with the applications for financial relief and having the courts involved in the division of the matrimonial assets. Judicial separations can often give parties the time and space to work out the next best steps to take, as the marriage is not dissolved.

Procedure

Couples wishing to file for a judicial separation should complete a judicial separation petition using Form D8. According to the government information site, the cost of the judicial separation is £365, marginally cheaper than the cost of divorce proceedings, where the fee is currently set at £410.

Is judicial separation common?

No. Family court statistics show that in 2014, 210 petitions were filed and just 141 decrees of judicial separation were granted. This is a mere handful in comparison to the 112,003 decree absolutes issued for divorce proceedings (referred to as ‘dissolution of marriage’ statistics on the website).

If the judicial separation is intended to be used as an interim measure until the marriage hits the first anniversary, couples typically issue divorce proceedings at a later date. While judicial separation gives couples who might ordinarily object to divorce the opportunity to deal formally with the finances of the marriage, there is a reduced element of finality to a decree of judicial separation. Old wounds may be reopened if one party to the judicial separation meets someone new and wishes to remarry. Couples considering judicial separation should take advice from lawyers.