Legal Separation is officially known a Judicial Separation. This is where a couple do not divorce but instead apply for a Decree of Judicial Separation.
These are very rare proceedings and basically means that although you are both seen as married, it is legally recorded that you are no longer a couple. Judicial Separation is advantageous to those who do not wish to divorce for cultural or religious reasons but want to separate or those that may wish to divorce in the future and want a record of the separation.
There are disadvantages however in that you can lose out on certain rights and benefits by being separated and in some cases divorce may be a preferred option as it allows the parties to move on.
The grounds that you would issue a Judicial Separation on are identical to divorce although it does not have to be proved that the marriage has irretrievably broken down as in the case of divorce.
A Judicial Separation does not end the marriage. A Decree of Judicial Separation is granted. A Petition for Judicial Separation can be issued within the first year of marriage, unlike divorce.
We deal with Legal Separation on a fixed fee basis. For further details and to instruct us to deal with your Legal Separation contact us.
What grounds do I need to show to obtain an Order for Judicial Separation?
You can apply for a Judicial Separation on the same grounds as divorce. These are:
This ground can be used if the person who is issuing the proceedings believes that the other party has behaved in such a way that they cannot reasonably be expected to remain living with them.
The Petitioner is required to supply 5 or 6 paragraphs within the Petition of such behaviour. There is no set guide to what is considered unreasonable behaviour but this could include the following:
- Spending joint monies selfishly
- Violence towards the other party
- Excessive hours of work
- Failing to deal with the emotional or other needs of the other party;
- Physical or mental bullying
- Improper conduct towards the children
The Court must be satisfied that the spouse has committed adultery and that the person issuing proceedings finds it intolerable to live with the spouse. Adultery is voluntary sexual intercourse between a man and woman who are not married to each other.
A relationship with a member of the same sex is not regarded as adultery and if this were the case another ground would have to be considered.
If proof of the adultery does not exist or the adultery is not admitted then the ground of adultery is very difficult to prove. To overcome the problems of proving the adultery, we would usually ask the spouse who has committed adultery to sign a “Confession Statement” where he/she admits to the adultery.
The person with whom the relationship was conducted with is called the “Co-Respondent” and can be brought into the proceedings although it is inadvisable to do so as it can increase the complexity of the divorce. For this reason, we usually advise that the Co-Respondent is not named within the proceedings.
You cannot proceed on the basis of adultery if you have lived together as a couple for over 6 months after you knew about the adultery.
2 years separation by Consent
This ground can be used if the parties have lived separately from each other for at least 2 years and the other party consents or agrees to the proceedings.
During the 2 year period you can co-habit for up to 6 months if you reconcile (get back together) which will be added to the 2 year period but will not stop it running.
For instance, if a couple break up and live apart for 3 months then get back together for 2 months then they still have a further 21 months separation before they can issue on this ground.
5 Years Separation
If the parties have lived apart for at least 5 years this ground could be considered.
The other party does not need to consent to this divorce but they are allowed to apply for financial claims against the person who is issuing the proceedings.
Desertion after 2 years
This ground could be considered if the other party has deserted the person who is issuing the proceedings, for a period of at least 2 years and they did not consent to this desertion. In practice this ground is very rarely used and it is generally recommended that proceedings are issued on other grounds.
When can a Judicial Separation be applied for?
Unlike divorce, a Judicial Separation can be applied for within a year of marriage and any time after that.
What are the differences between Judicial Separation and Divorce?
The differences between Judicial Separation and divorce include:
A Judicial Separation can be applied for within a year of marriage whereas there is a bar on applying for divorce within that time.
There are two Decrees in divorce ending the marriage, a Decree Nisi and a Decree Absolute. In Judicial Separation there is only one.
Although the grounds are the same as for divorce, in Judicial Separation it is not necessary to prove that the marriage has irretrievably broken down as with marriage.
Judicial Separation may not have the same effect on pensions that a divorce has as the parties are still technically married.
What are the effects of Judicial Separation?
There are three main effects to a Deed of Judicial Separation:
- The parties are no longer obliged to live together;
- The Court can exercise its powers in relation to division of the matrimonial property and finances as it can in divorce (see property and finances section for more information).
- The spouse no longer receives automatic interests in a property unless a new will is made stating that to be the case.
Can I still divorce if I obtain a Judicial Separation?
Yes it would be possible for the parties to obtain a divorce after they have lived apart for 2 years if they wished, provided that they both consented.
However, it may well be that the person who applied for the Judicial Separation is still unwilling to get a divorce after this time and therefore divorce proceedings would become defended which can be lengthy and expensive. In this case therefore it would be more beneficial to have obtained a divorce rather than a Judicial Separation.
How are financial matters dealt with?
The Court can make orders as to finance and property in the same way as a divorce. The only difference is that the Court cannot order a Clean Break as the parties are technically still married however it can be recorded as an intention to have a Clean Break.