What is Judicial Separation?
A decree of Judicial Separation [or JS] is a court order similar to divorce.
However under JS, a couple remains legally married – Judicial Separation does not dissolve the marriage, so a judicially separated couple cannot re-marry. However their normal marital obligations do cease.
Why use Judicial Separation?
Judicial Separation can be used by couples who have a moral or religious objection to divorce because the order does not end the marriage, allowing them to remarry or enter into a new civil partnership if they apply for the JS petition to be rescinded – i.e. reversed.
JS is also sometimes used if the couple have been married for less than a year or when it may be difficult to provide evidence of irretrievable breakdown for divorce.
What is the procedure ?
Judicial Separation procedure is broadly the same as divorce. However, Judicial Separation proceedings finish with Decree Nisi.
Also you do not need to show that your marriage has broken down irretrievably, but, as with divorce, you do need to prove 1 of the 5 reasons for your separation, i.e. adultery, unreasonable behaviour, desertion for at least two years, separation with consent for two years or separation without consent for five years.
Like divorce, a Statement of Arrangements form [setting out plans for any children] is also required together with the original or a certified copy of the Marriage Certificate. You can also expect to pay similar fees as those for a divorce petition.
Only one decree is issued, once the court is satisfied that the requirements for Judicial Separation have been met.
What about financial arrangements?
With JS, the court does have power to finalize financial issues including dividing the matrimonial property and providing maintenance for children of the family – but does not have power with regard to pension-splitting.
Any provision for the spouse in a Will is also negated unless a new Will is made reinstating them as a beneficiary. However, one who is judicially separated may still be eligible for benefits under a pension scheme on the death of their partner.
Click here to read more about dividing family assets on divorce and judicial separation.
What about the children?
Like divorce, a Statement of Arrangements form [setting out plans for any children] is also required by the court together with the original or a certified copy of the Marriage Certificate.
Also as with divorce cases, the court can issue orders on dividing the matrimonial property and providing for the custody, support and maintenance of children.
Click here to find out more about making arrangements for children on divorce and judicial separation.
How often is Judicial Separation used?
JS petitions are rarely granted; in 1998 for example, only 518 Judicial Separation decrees were issued in England and Wales compared to 143,879 Decrees Nisi.
However, if both parties are opposed to divorce for religious or other personal reasons and consider Judicial Separation to be the best option, contact our team of specialist divorce lawyers to ensure you receive the most expert legal advice.
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