Judicial separation, also known as legal separation, is an alternative to divorce for couples whose relationship has broken down. A legal separation allows you to formally separate, without divorcing or ending a civil partnership. It allows the court to make orders about the division of money and property without actually ending the marriage.
You may want a legal separation if:
- You have religious reasons against divorce
- You have been married or in a civil partnership for less than a year
- You want time and space to work out if you want to end the marriage or civil partnership
How to make an application
An application can be made jointly with your partner, or on your own.
You can make a joint application as long as both parties agree to a judicial separation and neither party are at risk of domestic abuse. Under a joint application, party 1 will complete the application, before sending it to party 2 for their approval. Following this, the Family Court issues the application.
Alternatively, you can make a sole application if your partner does not agree to a legal separation or you do not think your partner will cooperate or respond to notifications from the court. Under a sole application, party 1 (the applicant) simply applies to the Family Court. Party 2 (the respondent) then needs to complete an Acknowledgment of Service Form within 14 days of receiving the application.
If the respondent does not agree to the application, it will become contested and the respondent will have a further 21 days to file an answer at court. There are very limited circumstances in which a judicial separation can be contested and a respondent cannot argue that the marriage/civil partnership has not broken down.
After the respondent has replied to the application, there is a 20-week ‘cooling off period’ to allow time for reflection for the separated couple. After this period, the applicant can apply to the court to confirm any agreement reached between the parties, especially regarding their finances.
Differences between judicial separation and divorce
The biggest difference between judicial separation and divorce is that once proceedings have concluded the parties remain married. This means that neither party can remarry until a divorce is obtained. After obtaining a judicial separation, either party can apply for a divorce at a later date.
Unlike divorce, you do not need to wait a year until you can apply. You can seek a judicial separation at any time after the marriage. When making the application, the fee is also considerably cheaper than divorce proceedings, with it being approximately 50% less based on figures in May 2024.
In judicial separation proceedings, you do not need to obtain two orders like you do with the divorce process (conditional and final order). Instead, you get one order to confirm the separation once the court is satisfied that all requirements have been met. The order will state that all marital obligations, such as living together, will end.
A final difference relates to pension arrangements. As the parties are technically still married, the court will not grant a pension sharing order. This is often the biggest disadvantage to parties using judicial separation proceedings compared to divorce.
What are the effects of judicial separation?
The main effect following judicial separation is that if one party dies without leaving a will, their property would be inherited as if the other party to the marriage/civil partnership has deceased them, meaning they will not inherit. However, where a party has made a will providing for their partner to inherit property on death, they will still benefit despite the judicial separation. This is unlike a final order for divorce which affects inheritance under a will.
If you require further information about judicial separation divorce or any other family law matter please do not hesitate to contact our family department at Ramsdens, telephone: 01484 821500 or email: family@ramsdens.co.uk.
The above article is for illustrative purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any part of the information given.