Judicial separation, often referred to by individuals as a ‘legal separation’ is an alternative Court process to divorce/dissolution to formalise a couple’s separation.
What is Judicial Separation?
Judicial Separation is a formal separation between a married couple or those in a civil partnership which has the effect of ending the marital/partnership obligations between the couple but, fundamentally, does not terminate the marriage/partnership. Legally, therefore, the couple will still be married/civil partners, however, a judicial separation allows them to separate their finances and apply to the Court for financial orders.
A judicial separation is usually chosen by a married couple/civil partners instead of divorce/dissolution for moral, personal, cultural or religious reasons where perhaps a divorce/dissolution is not generally accepted.
What are the main differences between divorce and judicial separation?
Firstly, unlike in divorce proceedings, where the couple need to wait a year before they can apply for a divorce, a separated couple can seek judicial separation at any time after the marriage.
Another key difference is that following the Divorce, Dissolution and Separation Act 2020 which came into effect on 6 April 2022, a couple do not have to prove that the marriage has broken down irretrievably by relying on the former five “facts”: adultery, unreasonable behaviour, desertion, two years separation with consent and five years separation. Therefore, the applicant(s) simply need to state that they seek a judicial separation.
With judicial separation, there are not two court orders as there are in divorce/dissolution proceedings, namely decree nisi/conditional order and decree absolute/final order. Once the court is satisfied that all legal requirements have been met, there is just one order made by the Court pronouncing the judicial separation.
Lastly, as the marriage is not legally ended under judicial separation, the parties will not be free to remarry until an order of divorce is obtained. It is important to note that judicial separation does not prevent the separated couple from applying for a divorce at any time in the future should they so wish.
Judicial separation procedure
- The application:
The process begins by one person (the “applicant”) lodging an application with the family court. There is also a court fee payable upon submission of the application. Since 6 April 2022, there is provision for the separated couple to apply jointly (“applicant 1” and “applicant 2”). Under a joint application, applicant 1 will initially complete the application and then send it to applicant 2 for their review and approval. Within the application, it will detail the names of both parties, the date of marriage/civil partnership and the intention to seek a judicial separation. Following this, the Family Court issues the application and if a joint application is not made then the court will send a copy of the application to the other person and they will be known as the “respondent”.
- Acknowledgement of service:
In a sole application, the respondent will need to complete a form called the Acknowledgment of Service once they receive the application. This form will confirm they are in receipt of the application and they are required to return it back to the Family Court within 14 days. Following this, the court will send this form to the applicant.
- Contested judicial separation:
If the respondent does not agree with the application, it will be referred to as a defended or contested judicial separation. The respondent will then have a further 21 days to file an Answer at court. However, since the reforms as of 6 April 2022 there are very limited circumstances in which a judicial separation can now be defended/contested and a respondent is unable to argue that the marriage/civil partnership has not broken down.
- Cooling off period and confirming the application:
There is a 20-week ‘cooling off’ period from the date the application is issued by the Family Court until the applicant can finalise the judicial separation. This is to allow time for reflection for the separated couple. Once this period has passed the applicant will complete a statement confirming the contents of the application and send this to the Family Court.
- Judicial separation order:
The Family Court will check and approve all the judicial separation documents from the separated couple and if the application is uncontested, the court will fix a date for pronouncement of the judicial separation.
How long does it take to get a judicial separation order?
The court process will usually take between 6 and 9 months to obtain an order of judicial separation. However, the length of this process is quite often determined by whether there are any disputes or outstanding issues that need to be addressed such as unresolved financial/property matters.
What are the effects of Judicial Separation?
The three main effects of a judicial separation are: a) the separated couple no longer have a duty cohabit with each other, which in today’s society has little practical meaning given that a person cannot actually be compelled to live with their husband/wife/partner; b) the Court can make certain financial orders within judicial separation proceedings, whilst the marriage will subsist; and c) if one of the couple dies without leaving a will, their property would devolve as if the other person to the marriage/civil partnership had deceased them, meaning that the surviving spouse/civil partner will not inherit.
Where a person has made a will providing for their husband/wife/partner to inherit property in the event of their death, they will benefit despite the order of judicial separation, whereas a final order of divorce affects inheritance under a will. Whenever there is a significant life change including a separation which proceeds to either a judicial separation or divorce, it is advisable to obtain independent legal advice to ensure that in the event of death, the person’s estate passes to their chosen beneficiaries.
Can I still divorce if I obtain a Judicial Separation?
A person or the parties jointly can later apply for a divorce, after they have been married for at least 12 months, should they wish to terminate the marriage or dissolve the civil partnership. This will require a further and separate application being made to the Court for divorce/dissolution proceedings.
How are financial matters dealt with?
Under judicial separation, the court is able to make financial and property orders in the same way as in divorce/dissolution proceedings. However, the Court is unable to order a ‘clean break’ as the parties are technically still married/civil partners under judicial separation and there needs to be a mechanism for a party to make a financial claim against the other in the future, if necessary, resulting from their marriage/civil partnership. However, any court order made can record the separated couple’s intention to have a clean break, that is to be financially self-sufficient and independent of each other.
The Court can make the following financial orders: lump sum order, property adjustment order, periodical payments order, but, under a judicial separation, the Court does not have the power to make pension sharing order, only a pension attachment order, since a pension sharing order requires the pronouncement of a Decree Absolute/final order, which has the effect of terminating the marriage/civil partnership, which cannot be achieved by judicial separation.
If the separated couple are in agreement with the terms of settlement of their financial matters, which, for example, may include a transfer of property and lump sum order, they can enter into a financial consent order. This document will incorporate all the agreed terms and presented to the Court for approval. If approved, the financial order then becomes legally binding.
In the event that a separated couple cannot agree how their finances should be divided and/or whether or not a property should be sold/transferred, then either person can make a separate application to the court for financial proceedings and a timetable of directions will be set by the Court leading up to a Court hearing which the separated couple will need to attend. The Court process will involve the mandatory exchange of full and frank financial disclosure. Whilst it is possible to agree terms of settlement at any stage, should that not be possible, ultimately, the Court will determine what a fair and reasonable settlement should be.
For advice about judicial separation, divorce, dissolution or any other family law matter please contact a member of our Family Law team.
