What is Judicial Separation?
When a couple cannot agree the terms by which they will live separately, either party can apply to the court for a decree of judicial separation. A decree of judicial separation removes the obligation on spouses to co-habit.
Many separating couples obtain a separation by agreement or apply to the court for a decree of judicial separation to regulate matters between them before they apply for a divorce. However, a divorce cannot be applied for until they have been living separate and apart for four out of the previous 5 years.
Can I apply for a Judicial Separation?
You can apply for a decree of judicial separation based on one or more of the following grounds:
- one person has behaved in such a way that it would be unreasonable to expect the other person to continue to live with them
- one person has deserted for a continuous period of at least one year at the time of the application
- the couple have lived apart from one another for a continuous period of at least one year up to the time of the application and both parties agree to the decree being granted
- the couple have lived apart from one another for at least three years at the time of the application for the decree (whether or not both parties agree to the decree being granted)
- the court considers that a normal marital relationship has not existed between the spouses for at least one year before the date of the application for the decree.
The last is by far the most common ground on which the decree is granted, as neither party has to be shown as being at fault.
Can other matters be dealt with at the same time?
Yes. Additional (ancillary) orders can be applied for in the process of judicial separation. They are similar to the orders that can be applied for in the process of divorce and include custody and access to children, the payment of maintenance and lump sums, the transfer of property and the extinguishment of succession rights. If a pension adjustment order is required you must secure a court order to bind the trustees of the scheme.
What is the difference between judicial separation and divorce?
The main difference in law between divorce and judicial separation is that a divorce allows both parties to remarry whereas a judicial separation does not.
Also, the court may review arrangements made in a decree of judicial separation in any application for a decree of divorce.
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Our Family Law Expert
Áine advises clients in relation to all aspects of family law including Separation Agreements, Judicial Separation and Divorce Proceedings. Her approach is to provide step by step guidance and support to clients in achieving the best outcome for them in difficult circumstances Áine can offer sensitive yet sound advice to help guide clients through the financial and legal implications and towards a solution that will allow the parties to move forward with their lives.