Divorce is not the only mechanism available to couples wishing to formally separate. Judicial separation offers an alternative avenue, providing clarity on its processes and implications. This article delves into what judicial separation entails, its differences from divorce, and why it might be preferable for some couples.

Understanding Judicial Separation

Judicial separation is a formal separation between parties who are married or those in a Civil Partnership which is sanctioned by the Court via a Court Order. As a result, the separating parties are able to end their obligations towards each other and separate their finances. Just like a divorce, an application for judicial separation gives the Court power to make orders concerning the assets and liabilities of the parties. The two key differences are the types of orders which the Court can make and the fact that in Judicial separation proceedings the marriage is not terminated. These two differences are explored below.

Initiating Judicial Separation

The process of judicial separation is very similar to that of divorce although the 12 month gap between the date of marriage and application does not apply.

A formal application will need to be made by one of the parties (or both via agreement). This form is called Application for (Judicial) Separation or a “D8S”. The Court will not consider whether the marriage has “broken down irretrievably” and as a result of the new no-fault divorce legislation there is no need to rely on one of the 5 traditional factors namely; adultery, unreasonable behaviour, two years separation with consent, 5 years separation or desertion. The Applicant merely needs to state that they seek a judicial separation and once the application is issued and finalised a decree pronouncing formal separation will be made by the Court. However, unlike the equivalent document issued at the end of divorce proceedings (Final Order of divorce) the marriage is not legally terminated.

Financial Implications

Despite the separation, the court retains the authority to issue financial orders, dictating the division of assets and liabilities. However, unlike divorce, the court cannot issue Pension Sharing Orders, and financial claims between the parties remain open for future resolution, given the marriage’s legal continuity.

Advantages of Judicial Separation

1. Maintained Marital status: For individuals with moral or religious objections to divorce, judicial separation allows for formal separation while retaining the legal status of marriage.
2. Cost and time efficiency: Judicial separation is quicker and less expensive than divorce. This is due to the court fee being lower and the judicial separation process not requiring a “conditional order stage”.
3. Early application: You can apply for judicial separation within the first 12 months of your marriage. This is not the case for divorce.
4. Inheritance and Tax benefits: The spousal inheritance tax exemption (£325,000) still applies following decree pronouncing formal separation. Once your Final Order of divorce is pronounced this exemption ends immediately.
5. Continued benefits: If your spouse has a Will in place naming you as a beneficiary and they pass away following decree pronouncing formal separation without executing another Will, you will still benefit.

Considering Alternatives

Opting for judicial separation doesn’t preclude future divorce proceedings or being able to dissolve a Civil Partnership. Couples can pursue divorce and accompanying financial orders if circumstances change, such as a need for pension sharing or resolution of financial claims. The only condition being that you and your spouse have been married for at least 12 months. This flexibility ensures that couples can adapt their legal arrangements to evolving needs and circumstances.

How we can help?

Navigating separation, whether through divorce or judicial separation, can be complex. TV Edwards’ family team has extensive experience in this legal area and can provide invaluable assistance in understanding the nuances of each option and determining the best course of action tailored to individual circumstances.
Please contact the team by emailing divorce@tvedwards.com or call 0203 440 8000.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.