Is Judicial Separation the Same as Divorce?

Year Published: 2020

Occasionally, parties may want to pursue Judicial Separation Proceedings rather than a divorce. This may be due to a variety of factors such as, religion, moral or cultural reasons.

What is the Difference between Judicial Separation and Divorce?

If a decree of judicial separation is granted, then the marriage does not dissolve but it does mean that the parties no longer have to live together. Where a decree of judicial separation has been granted, and either party dies without leaving a Will, then the estate will devolve as if the other spouse has already died. Therefore, the surviving spouse will not benefit.  However, judicial separation does not affect an existing Will.

In a divorce, there is a two-stage process:

  1. decree nisi; followed by
  2. decree absolute (six weeks and a day afterwards).

The decree absolute dissolves the marriage in its entirety. However, with judicial separation, there is only one decree and the parties, in effect, are still married.

What are the Grounds for Judicial Separation?

Under the law for judicial separation, proof that the marriage has broken down irretrievably is not required. The grounds for judicial separation are the same as the grounds needed for a divorce under the current law:

  • Adultery
  • Unreasonable behaviour
  • Desertion for a period of at least two years
  • Two years separation with consent
  • Five years separation when no consent is needed.

Filing for Judicial Separation or Filing for Divorce

It is important to realise that if a petition for judicial separation is filed, the Court does not have the power to make Pension Sharing Orders. Pensions are frequently one of the most valuable assets in a marriage, so this can be an important consideration when deciding what process to use.

Under the current law, a petition for divorce cannot be filed until the parties have been married for a year. However, you can apply for a judicial separation at any time.

With a judicial separation, the court cannot order a clean financial break unless both parties give their consent.

It is important to obtain professional advice and to ensure that you are aware of the effect either a divorce or judicial separation can have on your financial position. For further guidance, please contact our Family team on 0161 475 7676 or email [email protected].

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