Judicial Separation vs Divorce

What is judicial (Legal) separation? 

Judicial separation allows a couple to legally separate without having divorced, which would legally end their marriage. It is a formal separation that is granted by the courts. Although unusual, judicial separation can be attractive to those opposed to divorce, for example: 

• For cultural, moral or religious reasons 

• For a marriage or civil partnership that has lasted less than a year 

• If you are still considering whether you want to end the marriage or civil partnership but would like to be legally separated in the meantime 

What is the process for judicial separation? 

If a couple would like to obtain a judicial separation, they must lodge a petition with the court along with the court fee. This will set out all relevant information, including the grounds for separation. This will be issued by the court upon approval.  

The other spouse is then sent the petition and must acknowledge receipt of the document. They must return the form back to the court within seven days. They will be asked if they want to defend the petition if they do not agree to the judicial separation. This is rare in practice but, should it occur, they then have a further 21 days to file an answer at court. This is known as a defended judicial separation. 

In the event of an undefended petition, the petitioner will then confirm the contents of the petition via an affidavit that is sent to court. Thereafter, the court will check the documents and, if approved, will fix a date for the pronouncement of the decree of judicial separation.  

Similarities to Divorce 

Please note that the following only applies to divorces started before 4pm on 5th April 2022. For divorces after this date, no fault divorce now applies.

The petitioner must say on what grounds they would like the court to issue a decree of judicial separation. The grounds are the same as the five facts of divorce, those being:  

• Unreasonable Behaviour 

• Adultery  

• Two-years separation with consent 

• Five-years separation; and 

• Desertion 

However, unlike with divorce, it is not necessary to show that the marriage has irretrievably broken down.  

The effect of a judicial separation is as follows: 

• Upon the decree of judicial separation being pronounced, they couple are no longer obliged to live together.  

• Likewise, the court can make many of the financial and children orders that can be made on divorce. However, one notable exception is that the court cannot divide a pension pot with a judicial separation.  

The process generally takes four to six months, though this can be a lot longer depending on how long the issues such as finances and arrangements for any children take. 

what is the difference between judicial separation and divorce

As opposed to divorce, there is no time limit in place. This means that you can apply for judicial separation immediately after marriage. This is different to a divorce where you must be married for a year to issue divorce proceedings. There is also only one decree in this case, the decree of separation, whereas in divorce there is the decree nisi and the decree absolute. 

In terms of inheritance, the position is also different. Wills are unaffected by judicial separation, which is in direct contrast to divorce. However, should you die intestate, your spouse would be treated as if they were dead. 

Most importantly, the marriage does not terminate on pronouncement of judicial separation. This means that neither party will be free to remarry until a divorce is obtained.  

Advantages to Legal Separation 

There are many advantages to judicial separation, should this be an attractive option for you. It gives you time to consider if you want to divorce without affecting the sanctity of your marriage. Likewise, it allows you to deal with your finances and children matters, allowing you to focus on the emotional impact of the divorce itself, should you decide to go through this in time. However, judicial separation remains a rarity in comparison to divorce due to the restrictions which come with still being married.  

Nevertheless, should this be an attractive option for you, we would recommend that you instruct specialist family solicitors to advise on these matters.  

If you’re are considering or going through a divorce or judicial separation, click below for a free initial consultation with one of our expert divorce solicitors.

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