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 decree absolute 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 decree of judicial separation does have the same effect as a decree of divorce on a will. This means that once the decree of judicial separation has been made neither spouse can take any benefit under each other’s Will unless a new one has been drawn up.
The facts that a spouse may rely on to pursue a Judicial Separation are the same as those for divorce such as adultery, unreasonable behaviour etc. Unlike divorce a spouse does not need to prove that the marriage has irretrievably broken down.
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.