Judicial/Legal separation – what is it?

September 14th, 2021

There’s a big difference between separation and divorce. However blurred the lines may seem, there is a legal definition that clarifies exactly what legal separation is, and how it affects you. But what exactly does it mean if you’re legally separated from your former partner? And how does it differ from a divorce?

What is a divorce?

If you’ve been married for more than a year and can show that your marriage has ‘irretrievably broken down’ by relying on one of the 5 facts below, you can apply for a divorce. This severs all ties legally between two people, and means that each former spouse is free to marry again if they so wish. Facts fall into five categories:

  • Unreasonable behaviour
  • Adultery
  • Separation for more two years with consent
  • Separation for five years (with or without consent)
  • Desertion

Recently, divorce law has been broadened to include ‘no fault’ divorces where there is no blame apportioned to either party. However, these changes will be available until April next year. Regardless of the grounds, a divorce involves the courts issuing two decrees – a Nisi and a Decree Absolute, which effectively ends the marriage in the eyes of the law. Bear in mind, though, that a Decree Absolute doesn’t end a couple’s financial commitments, especially if there are children involved and where one party is required to pay child maintenance until the children reach a certain age.

What is judicial or legal separation?

Unlike divorce, a legal or judicial separation doesn’t mean the marriage is over. While an application for a judicial separation will result in a Decree of Judicial Separation from the courts, it means that while you are officially ‘separated’, you are still married. So if one partner wishes to remarry, they cannot until they apply for and are granted a divorce.

Unlike a divorce, you do not have to wait for a year before you apply for a judicial separation. You don’t need to prove that your marriage has irretrievably broken down, either, although you will need to explain why you want a judicial separation.

Is it the same as a separation agreement?

No. Separation agreements are informal agreements between two people who may no longer want to live together as partners, but are not yet ready to move onto a full-blown divorce. A separation agreement usually outlines things such as who lives in the marital home or if both parties agree to it being sold, how the proceeds are to be divided, arrangements for the children, who pays the mortgage or rent, and who is responsible for any debts. A separation agreement will also outline how your assets are split up, and the payment of maintenance (especially if one partner is financially reliant on the other). A separation agreement is a useful document to put in place. It can be converted into a consent order in future divorce. However, its import to note that it isn’t an Order of the court and that it is not binding on a judge in a future divorce. It is however a document the court will consider if it has been entered into when both parties have taken legal advice, disclosed their financial information to each other and it’s fair. It therefore it’s very important to make sure that you take legal advice and have it drafted carefully.

What are the benefits of a judicial separation?

Unlike a divorce, you don’t need to prove any of the five grounds to demonstrate that a relationship has broken down. There’s no legal right for the courts to split pensions under a judicial separation, but it is important to talk to a financial and legal advisor to make sure any distribution of assets (including pensions) is fair.

Under a separation agreement, you are no longer obliged to live together, but do remember that in the eyes of the law, you are still married.

What obligations do you have?

Whereas a divorce is effectively an end to a relationship in the eyes of the law, a judicial separation means that the couple are still bound together to a certain degree. Financial commitments remain the same (unless a new agreement is drawn up), and things such as wills and pensions need to be considered carefully. To ensure that everyone is treated fairly, it’s wise to call in a family law expert at as early as possible, to make sure there are no more complex financial wrangles further down the line.

Our specialist lawyers can guide you through the entire process and assist with your case in a friendly and professional way. Reach out to our expert team today to see how we can support and advise you.

No matter what happens, it’s important to get the right advice as quickly as you can. If you’re facing a separation and feeling overwhelmed our experienced team are here to support you through the process. It could make a very difficult and upsetting event a little easier.