Judicial separation is more than just husband and wife living apart. Should you separate or seek a divorce? People in the UK often talk about legal separation without necessarily being too precise about what exactly they mean. Usually it just means that they want to live apart from their spouse but that they want some formality to the separation so that they can each pursue their own lives. In fact, there is a remedy available from the family courts called a decree of judicial separation. This is not a divorce and the parties remain married but, in effect, there is marital separation. All the normal marital obligations come to an end.
A decree of judicial separation can be granted for any of the grounds which would justify a divorce – unreasonable behaviour, adultery etc – but it is not necessary to prove that the marriage has irretrievably broken down. Also, there are not two decrees as there are in divorce – decree nisi and decree absolute – but simply one decree pronouncing the judicial separation once the court is satisfied that the requirements are met.
A decree of judicial separation has three main effects:-
(1) The spouses are no longer obliged to live together;
(2) The court can exercise all the powers which it has to divide the matrimonial property etc just as it can in the case of a divorce; and
(3) The decree operates just like a divorce in terms of its effect on any will – the spouse no longer takes any benefit unless a new will is made specifically stating that is to be the case.
It is almost certainly the second of these which is the most important in practice but it should be appreciated that the number of decrees of judicial separation which are awarded every year is miniscule in comparison to the number of divorces (and decrees of judicial separation are almost exclusively granted at the request of wives rather than husbands). There seem to be three more or less valid reasons why the parties to a marriage may seek a decree of judicial separation rather than a divorce:-
(1) At least one of the parties to the marriage is opposed to divorce for some reason – typically for religious reasons.
(2) There is an absolute bar to divorce within the first year of a marriage and so judicial separation may be all that is available if the parties are determined to formalise the break by court proceedings within that first year.
(3) For some reason it may be difficult to prove the irretrievable breakdown of the marriage necessary for a divorce.
It has to be said that unless both parties to the marriage are opposed to a divorce for religious or conscientious reasons it is difficult to see how it can ever be in anyone’s interest to consent to a decree of judicial separation rather than a divorce. If a wife (and it is normally the wife) wants to obtain a decree of judicial separation and the husband does not have any religious difficulty about obtaining a divorce he should almost certainly be advised to seek a divorce rather than acquiesce to a decree of judicial separation.
The reason we say this is that when a marriage has broken down it is not usually difficult to find sufficient grounds for divorce on the basis of unreasonable behaviour. The courts are not demanding in their requirements and it is extremely difficult to defend a divorce petition successfully. Except in the first year of marriage it is almost always possible to obtain a divorce if that is what one spouse wants.
It would be possible for the parties to obtain a divorce after they have lived apart for two years if they wished provided that they both consented but the reality of the matter is that a person who seeks a decree of judicial separation rather than a divorce is very unlikely to consent to a divorce at all – whether in two years or five years or any number of years. A great deal can happen in such a period of time – not least the possibility that one party to the marriage might meet someone else and wish to remarry. If at that point one is confronted with someone who is still technically your spouse who resolutely refuses to grant you a divorce (and such a refusal is almost inevitable in these cases) then there are very real problems. It is better not to put oneself in this position. No-one should contemplate a judicial separation without realising that it might prevent them remarrying for a very long time indeed. If, ‘how long does divorce take?’ is important to you (and it might become important during the course of the separation) then do not even consider judicial separation.
Judicial separation is often put forward by one spouse but it is very rarely a sensible course of action to agree to. For most people divorce would be a much better choice because judicial separation does not really allow people to move on with their lives.
If you have a spouse who proposes this you would be very wise to seek legal advice before agreeing to it. A judicial separation is rarely a sensible solution. Also for a married couple to simply separate without seeking either a divorce or a judicial separation is hardly ever wise. Please continue to find out more about simple separation and why it is rarely a good idea.