When a married couple separate they often talk about legal separation but are unsure really what they mean by this. Usually they are seeking some way of formalising the end of their relationship and this can be done by obtaining final order in divorce proceedings or by seeking a decree of judicial separation.
What is the effect of Judicial Separation?
Judicial Separation is in fact extremely rare and there is good reason for this. Unlike divorce judicial separation does not bring the marriage to an end but simply releases the couple from their obligations to live together.
The order for judicial separation does have the same effect as a final order of divorce on a will. This means that once the order for judicial separation has been made neither spouse can take any benefit under each other’s Will unless a new one has been drawn up.
New law came into effect on 6th April 2022 which substantially amended the law relating to Judicial Separation and Divorce.
There is now only one ground for judicial separation, namely the "Irretrievable breakdown" of the marriage. There is no need to provide evidence of that statement, which once made on the application is taken as fact. In effect it is a self certification.
There is a mandatory minimum period between the issuing of the application for judicial separation and the making of an application for a conditional order of 20 weeks, and a further 6 week wait after the conditional order is made before one can apply for a final order of judicial separation.
Just like divorce, those seeking a Judicial Separation can also apply to the Court for assistance in dealing with the matrimonial assets and more specifically how those assets are to be divided.
What are the advantages and disadvantages of Judicial Separation?
There are no advantages to Judicial Separation other than providing those who have very strong religious or personal reasons for opposing divorce an alternative option. That being said if one party wishes to pursue divorce proceedings then there is little that the other person can do. Although it is possible to defend divorce proceedings this is extremely rare. To defend a divorce is expensive and the likelihood of success is minimal. If one party to the marriage considers the relationship to have come to an end then it is reasonable to conclude that there were difficulties within that relationship which the Court in all likelihood will say has led to the irretrievable breakdown of the marriage.
As the marriage is preserved as a result of a Judicial Separation the parties concerned will not be in a position to remarry.