Judicial separation is normally relied upon as an alternative for divorce for those individuals who have a religious or moral objection to divorce. It is also sometimes used where there is a significant disparity is the ages of the parties, and there are benefits in remaining married, from a pensions point of view for instance.
Judicial separation is not the same as divorce, as it does not dissolve the marriage. It can however, be granted based on any of the grounds for divorce (adultery, unreasonable behaviour, 2 years separation with consent etc.) but irretrievable breakdown does not need to be proven. There will also only be one decree granted in judicial separation proceedings, as opposed to the two in divorce. The decree will stipulate that the judicial separation has been granted by the court, and that the necessary requirements have been met.
Unlike divorce, you can apply for judicial separation at any time after the marriage, you do not have to wait the requisite one year as with divorce.
Within judicial separation proceedings the court can still make orders about the division of assets. However, judicial separation does not have the same effect on pensions as divorce does as the parties remain married. This means the court cannot order a pension sharing order, and sometimes this is seen as one of the main disadvantages of judicial separation, as not all financial claims claim be dealt with.
As the marriage has not been dissolved, the parties will be prevented from remarrying until a divorce has been obtained.
Judicial separation has 3 main effects:
- The parties are no longer obliged to live together;
- The court can make orders as to the parties’ matrimonial finances, with the exclusion of pensions;
- The decree obtained works in the same way as a divorce when it comes to Wills, in that if one spouse dies intestate whilst the decree of judicial separation is in place, the other can no longer derive any benefit.
Specialist advice should be obtained when separating from your spouse, and if you would like to discuss the alternatives to divorce then please do not hesitate to get in touch.