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Judicial separation

As with divorce , all matters relating to the issue of a Judicial Separation are determined by the same provisions as a divorce; the procedure is nearly the same.

A petition for Judicial Separation is almost exactly the same as a divorce petition. However on an application for Judicial Separation, the court does not decide whether a marriage has broken down irretrievably. It merely has a duty to enquire so far as it reasonably can into the facts alleged by the Petitioner. A petition for Judicial Separation can rely on any of the five following facts (the same as a divorce):

  • The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
  • The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
  • The respondent has deserted the petitioner for a continuous period of at least two years immediately before the start of the Judicial Separation;
  • You have lived apart for a continuous period of at least 2 years immediately before the start of the Judicial Separation and the respondent consents to a decree being granted;
  • You have lived apart for a continuous period of at least 5 years immediately before of the Judicial Separation.

Principal differences between a divorce and a Judicial Separation

  • In a Judicial Separation, the marriage is not deemed to have come to an end and the parties cannot remarry;
  • A petition may be presented within 12 months of the marriage (unlike a divorce where parties must have been married for at least 12 months before a petition can be issued);
  • The marriage may not necessarily have irretrievably broken down and reference to this will not be included in the petition;
  • Although the petition is served in exactly the same way as a divorce petition, the notice of proceedings and acknowledgement of service will refer to Judicial Separation;
  • With regard to a petition based on 5 years’ separation, the respondent is not able to prevent a decree on the grounds that it will result in either grave financial or other hardship (unlike in a divorce based on 5 years’ separation)

The decree of Judicial Separation is the only and final decree. The parties remain married after the decree.

Reasons why a party to a marriage might file a petition for Judicial Separation rather than for divorce

  • The parties have not been married for more than 12 months;
  • A petitioner (for religions reasons) is not prepared to divorce the respondent;
  • The petitioner wishes to prevent the respondent from remarrying but at the same time is concerned to have other matrimonial matters resolved, for instance maintenance or the ownership of matrimonial property. However, in this connection, once 5 years have elapsed from the date that the parties separated, it becomes very difficult to oppose the granting of a decree of divorce;
  • Where a petitioner is concerned to preserve pension rights, which would accrue on the death of the respondent but would be lost as a result of a divorce.

It should be noted however that if a petition for a Judicial Separation has been presented within 12 months of the date of the marriage, it cannot even by consent be amended to pray for a decree of divorce. This means that once a period of 12 months has elapsed, a further petition for a decree of divorce should be presented. The issuing of the divorce petition will have the effect of superseding that for Judicial Separation.

However where the Judicial Separation petition has been presented after the 12 months period, it is possible to amend the petition to one for divorce.

At any time after the pronouncement of a decree of Judicial Separation, a petition for divorce can be presented. If it is based on the same fact and on the same or substantially the same, evidence as that previously provided, it may not be necessary to prove the evidence again, to which end there is merit in making reference in the particulars contained in the divorce petition to the fact that the decree of Judicial Separation was founded on the same or similar evidence. In other words, the existing decree of Judicial Separation may be sufficient proof.

Consequences of a decree of Judicial Separation

A decree of Judicial Separation does have the following important consequences:

  • the Petitioner is no longer bound to cohabit with the Respondent;
  • If either party dies intestate (without a Will), while a decree of Judicial Separation is in force and the separation is continuing, his or her property devolves as if the other party to the marriage has already died. In the case of a divorce, if the testator makes a will and is later divorced, provisions of the will appointing the former spouse as executor or trustee take effect as if the former spouse had died on the date on which the marriage is dissolved and any property or interest in property which is devised or bequeathed to the former spouse passes as if the former spouse had died on that date. However, legacies in Wills are unaffected by a decree of Judicial Separation, and if property is left to a spouse, that spouse will benefit despite the Judicial Separation. This means that if you have a Will leaving a legacy to your spouse or vice versa, then your existing Will(s) would take effect as drafted i.e. either of you would inherit from the other;
  • The other difference between a divorce and a Judicial Separation is that on a divorce, either spouse would not be entitled to receive a widow’s pension. However, with a Judicial Separation either of you would be entitled to benefit from it as though legally separated, you would still be husband and wife at law.
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