If you’ve recently separated from your spouse or civil partner you may be considering divorce or dissolution of your civil partnership. However, for some couples, this is not necessarily the best way forward. Instead, if you’re choosing to live apart but are still looking for the court to decide how your finances will be divided, you can apply for a judicial separation.
What does judicial separation mean?
A judicial separation is a legal separation which is sanctioned by the court in England and Wales. This allows couples to live apart without bringing their marriage or civil partnership to an end. It ratifies the separation, and with the exception of pension sharing, it will enable the court to make financial orders similar to those made on divorce or dissolution.
When can you apply for judicial separation?
You can ask the court to sanction a legal separation for the same reasons you could file for a divorce or apply to dissolve a civil partnership, although you will not be required to show that the marriage or civil partnership has irretrievably broken down. The grounds for separation, as with divorce or dissolution, include adultery, unreasonable behaviour, desertion for a period of at least two years, two years' separation with consent or five years' separation.
How does judicial separation differ to divorce?
Unlike divorce or dissolution of a civil partnership, you do not need to prove irretrievable breakdown of the marriage or union, and you will not need to be married or in a civil partnership for more than one year to be eligible to apply. Further, whilst a divorce or dissolution require two decrees from the court — a decree nisi and absolute, or a conditional and final order — a legally sanctioned separation requires one decree of judicial separation.
Once a decree of judicial separation has been granted, you will no longer legally be a couple or required to cohabit, but you will remain married where, unlike divorce or dissolution, you will not be permitted to remarry or enter into a new civil partnership.
When is judicial separation appropriate?
There are several reasons why judicial separation may be appropriate, including where one or both parties have religious or moral objections to divorce or dissolution. In other cases, judicial separation may be preferable to officially bringing a marriage or civil partnership to an end because a year has not yet passed since the wedding or civil ceremony. Conversely, more time may be needed to consider whether divorce or dissolution is the right decision.
Indeed, for those who decide to wait it out before getting divorced or dissolving their civil partnership, instead using judicial separation to regulate their finances in the interim, new legislation is set to revolutionise the way in which couples can apply for divorce or dissolution.
When is the new law due to come into force?
The Divorce, Dissolution and Separation Act 2020 is due to come into force on 6 April 2022. This removes the requirement to establish any facts before being granted an order. Rather, all that will be required is for one or both spouses to provide a legal statement to say the marriage or civil partnership has irretrievably broken down, in this way making it easier and less acrimonious to bring a divorce or civil partnership to an end. Equally, once the new provisions come into force, parties applying for judicial separation will not be required to establish any one of the five factual grounds.
For more information on judicial separation, divorce or dissolution of a civil partnership, expert advice should be sought from a family law specialist.
Legal disclaimer
The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.
