No Fault Divorce - what about Judicial Separation?

 

From 6^th April 2022 the biggest shake up of divorce law for 50 years will take place, with the long awaited Divorce, Dissolution and Separation Act 2020, which introduces no fault divorce becoming law. You can find our blog on this here.

What is Judicial Separation?

But what about Judicial Separation? Judicial Separation is an alternative option that is rarely considered but is often seen as vitally important to those who do not want to end their marriage.

There may be a number of reasons why a couple may not wish to divorce but would like to officially separate and to make arrangements to separate their financial affairs.  

So when is Judicial Separation appropriate?

• There may be religious, cultural or personal reasons why a couple do not wish to divorce.

• A couple may not have been married for 12 months and therefore do not meet the legal requirements for divorce.

• A party may wish to preserve pension rights or other benefits that may be lost on divorce but not on Judicial Separation.

At present, the same rules apply for Judicial Separation as they do for divorce; in that one of the five facts (grounds for divorce) are needed to be proved to obtain divorce, must also be used to obtain a Decree of Judicial Separation.

• These are adultery, unreasonable behaviour, desertion, two years separation with the Respondent’s consent or five years separation.

The difference for Judicial Separation is that the Court does not need to be satisfied that the marriage  has irretrievably broken down. Unfortunately, it is still therefore currently necessary to cite facts of blame where parties have not been separated for a period of two years or more.  This will however, change in line with the “no fault divorce” on 6^th April 2022, and there will be no necessity to blame the other party in order to obtain a decree of Judicial Separation.

In such circumstances, the Petitioner or both the Petitioner and Respondent can submit a Petition for Judicial Separation and there will be no facts needed to rely upon.

So, what should you consider when deciding whether a Judicial Separation is right for you?

An application can be made to the Court for financial remedy within Judicial Separation. When the party seeking Judicial Separation can apply for most of the same financial Orders as a party seeking a divorce including:

• Maintenance pending Suite

• A Periodical Payments Order

• A lump Sum Order

• Property Adjustment Order

• Pension Attachment Order

A Financial Order made in Judicial proceedings can also dismiss a claim under the Inheritance (Provision for Family & Dependants) Act 1975 (Section 15). What the Court cannot do is make a Pension Sharing Order upon Judicial Separation. Furthermore the Court cannot order a Clean Break under Section 25A of the Matrimonial Causes Act as the parties technically remain married. It can however be recorded within the Order that the parties intend to seek a Clean Break between them.

So what are the key differences from divorce?

• A Judicial Separation Petition can be filed within the first year of marriage.

• There is no necessity for the Court to consider whether the marriage has irretrievably broken down.

• There is only one Decree of Judicial Separation.

• Judicial Separation may not have the same affect on pensions and insurance policies as divorce, parties would need to take specific financial advice regarding the terms of the policies they hold.

• Judicial Separation does not affect existing Wills and therefore a review of any Wills in place prior to the Judicial Separation should be undertaken.

• If the parties do not have Wills in place and one party dies intestate, that persons property devolves as if the other party to the marriage has died.

• Judicial Separation may have an affect on possible tax consequences and advice should be sought with regards to this when considering the financial separation.

Although Judicial Separation is rare, it is something that parties should consider if they are unsure about whether it is a divorce that they want at the time of separation.  Like the no fault divorce, a no fault judicial separation will hopefully lead to less acrimony between the parties and for those that feel it is the right step for them, will be a much more simplified process under the new law.

If you would like advice on Judicial Separation or divorce, then you can contact one of our family lawyers for an initial free 10 minute telephone call and we will help guide you through the differences so that you are able to make an informed decision. Contact Us here.

 

 

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