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When marriages face difficulties, couples often believe that divorce is the only option.
While divorce can put a definitive end to a marriage, it can come at a heavy financial and emotional cost.
However, there is an alternative that might better suit your needs: judicial separation.
Judicial separation, also known as legal separation, is a legal process that allows married couples to formalise their separation without ending the marriage.
A Decree of Judicial Separation recognises that both parties are legally separated but remain married.
Unlike divorce, judicial separation does not dissolve the marriage, meaning that you and your spouse remain legally married but are no longer required to live together.
Under the Matrimonial Causes Act 1973, judicial separation can be used in a similar way to divorce, but with some key differences.
Judicial separation does not end the marriage. You remain legally married and cannot remarry unless you obtain a divorce.
There is no minimum period of marriage required for judicial separation. For a divorce, you must have been married for at least one year.
Judicial separation allows you to make decisions regarding finances, property, and children without dissolving the marriage, which can help if you have religious or personal reasons for not wanting a divorce. The Court’s powers to address financial ties in the course of judicial separation are however more limited than the powers available in the course of divorce proceedings. It is not possible to secure a Pension Sharing Order with judicial separation, neither is it possible to achieve a ‘clean break’.
The court can also make orders about rights to property after judicial separation, along with decisions about the wellbeing of any children and the division of debts and assets.
Since the marriage is not dissolved, judicial separation leaves the door open for potentially fixing the marriage if both parties choose to work on their relationship.
For some, divorce may conflict with religious beliefs or personal values. Judicial separation provides a legal alternative that respects these considerations.
Judicial separation can also offer financial protection and clarity while leaving the marriage intact, which is particularly important if one spouse needs to remain on the other’s health insurance or if there are other financial concerns.
Additionally, judicial separation is a useful option for couples who have been married for less than a year.
Couples who want time to work out if they can save their marriage may also benefit from a judicial separation, but separation does not stop the couple from filing for divorce later down the line.
Another benefit of judicial separation is that it has the same effect as divorce on a Will, which means that a spouse can no longer be the beneficiary.
You can apply for judicial separation on your own or jointly with your spouse.
A joint application can be made provided you both agree that you should get a separation and neither party is at risk of domestic abuse.
A sole application can be made when your spouse does not agree to the separation, or if they are likely to ignore or challenge any notifications from court.
It is important to seek independent legal advice before making any application for a judicial separation.
If you are planning to legally separate from your partner, you may wish to consider entering into a separation agreement.
This is written document that outlines the agreements made between partners upon their decision to live separately.
The agreement can detail provisions regarding financial arrangements, property divisions, child custody, and pensions.
Such an agreement provides clarity going forward, but it can also be useful if you plan to get divorced in the future.
Although separation agreements are not legally binding, they can hold substantial weight in court if they are drawn up correctly.
Both you and your spouse must enter into the agreement voluntarily and without duress or undue influence. Each of you must also seek independent legal advice before signing the agreement.
Divorce is a significant step, and not everyone feels emotionally ready to take it. Judicial separation can be a less final alternative, providing time and space to make decisions at a time better suited for both parties, and allowing you to deal with financial arrangements without formally dissolving your marriage.
However, there are limitations to judicial separation, particularly regarding financial settlement, so it is important to consider your options carefully.
Our friendly team of experienced family lawyers can advise you on all aspects of judicial separation, from submitting your application to drafting up a suitable separation agreement that will protect your best interests.
Whether you are considering judicial separation for religious, financial, or personal reasons, we are here to support you every step of the way.
If you are considering applying for judicial separation, get in touch with our Family Law team today for compassionate advice and guidance.
Director – Head of Family Department
I qualified as a Solicitor in 2006 and now specialise in divorce, financial settlements, childcare arrangements and Pre Nuptial Agreements. I have many years’ experience as a private family lawyer having worked with two other local firms before returning to Mander Hadley, where I first undertook work experience during my university studies.
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