A few words on judicial separation by John Bolch

Divorce|Family Law|January 13th 2014

As mentioned in this post, a case hit the headlines last week in which, to the amusement of many, it was suggested that a woman had tried to sue her lawyers for failing to advise her that a divorce would end her marriage. I’m not going to comment upon that, as there isn’t really enough information available to know exactly what happened. However, there is a serious point here.

The woman apparently argued that, having regard to her views as a Roman Catholic upon the sanctity of marriage, her solicitors should have advised her about the possibility of her issuing judicial separation proceedings as an alternative to divorce.

So, what are judicial separation proceedings, and when are they appropriate?

Judicial separation proceedings are actually much like divorce proceedings. They are taken on the grounds that one or more of the “facts” upon which a divorce petition may be based exists – i.e. adultery, unreasonable behaviour, desertion, two years’ separation with the other party’s consent and five years’ separation.

However, there are two major differences with judicial separation procedure. Firstly, the court doesn’t have to decide that the marriage has broken down irretrievably, as it does in divorce proceedings. Secondly, of course, the court grants a decree of ‘judicial separation’, rather than divorce.

What does a decree of judicial separation mean? Well, there are three main effects, although only the last one is usually of real importance.

Firstly, a decree of judicial separation has the effect that thereafter “it shall no longer be obligatory for the petitioner to cohabit with the respondent”. Obviously, this has no practical meaning in modern society, as one spouse can never legally compel the other to cohabit with them anyway.

However, judicial separation does have a bearing upon inheritance, as if while a decree of judicial separation is in force and the separation is continuing either party dies intestate then their estate will devolve as if the other party to the marriage were dead. Obviously, this is something that should be taken into account, and the parties to a judicial separation should make wills.

The last effect of judicial separation, if you can call it that, is that once the decree has been granted the court can then make financial and property orders similar to those possible during divorce proceedings, although this does not include certain orders relating to pensions.

When, then, is a judicial separation appropriate? The two most common situations are where, as in the case referred to above, the petitioner has a religious or other objection to divorce, or where the parties cannot get divorced because they have not yet been married for one year. In each case the petitioner issues judicial separation proceedings as they still want the court to make financial and property orders.

It should, however, be pointed out that a judicial separation does not prevent a future divorce. In particular, once five years have elapsed since the parties’ separation then either party should be able to get a divorce without the other party’s ‘fault’ or consent, and irrespective of that party’s objections to divorce.

In recent years, there has been a steady downward trend in the number of judicial separation petitions being issued. However, they do still sometimes have their place, and consideration should be given to them in appropriate circumstances.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. Stephanie Bamberger says:

    We used to do far more legal separations (as they are called in California) when the health insurance companies did not treat a Judgment of Legal Separation the same as a Judgment of Dissolution of Marriage. Most U.S. health insurance companies now view legal separations as equivalent to a divorce and will no longer allow the non-employee spouse to be covered unless they pay at the COBRA rates (which are generally 2 to 3x higher). Of course, y’all in the UK don’t have to worry about and maintaining health insurance coverage after a divorce or judicial separation under the NHS.

  2. Andrew says:

    Judicial separation should be abolished. If the marriage has not lasted a year it could be replaced by a regime of maintenance and protective orders to avoid property being transferred, valid until eighteen months after the marriage or until orders are made in a divorce.

    If the marriage has lasted a year: if you want relief go for a divorce. If you don’t want to remarry while your ex is living, you don’t have to. If your ex wants to remarry in your lifetime, that’s not your concern. Dead marriages should be buried.

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