Law Articles

Judicial separation as an alternative to divorce or dissolution 15/02/2021

Couples who cannot obtain a divorce or dissolution because they have not been married or in a civil partnership for a year, or who do not wish to do so perhaps for religious reasons, can make a request to the court for a judicial separation. This is legal recognition that you are separated from your spouse or civil partner.

Application for judicial separation does not carry the current requirement for divorce or dissolution of proof that the marriage or civil partnership has irretrievably broken down. An application can, however, rely on any of the following five facts which mirror those for divorce and civil dissolution:

• Unreasonable behaviour: the other party's behaviour is unreasonable and it is impossible to continue to live with them;
• Adultery: the other party has had sex with someone else;
• Two-year separation: the parties have been living separately for two years prior to the application being made, and both agree to the judicial separation;
• Desertion: out of the last two-and-a-half years the parties have been living separately for two, and one left the matrimonial home without good reason or the consent of the other;
• Five-year separation: the parties have been living separately for five years prior to the application being made; consent of the other party is not required in this instance.

Following granting of a decree of judicial separation, you and your partner will still be married or in civil partnership but the process enables the court to rule on decisions pertaining to the division of marital assets.

It is worth noting that the Divorce, Dissolution and Separation Act 2020 is due to come into force in Autumn 2021. This will remove the reliance upon factual grounds for an application for judicial separation, as currently required in the Matrimonial Causes Act 1973, instead requiring a statement from the applicant (or applicants if made jointly) that they seek to be judicially separated from their spouse or civil partner.

For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.