Judicial Separation
For the majority of separating couples, divorce will be the natural next step in the process, but there are a number of reasons why some may feel differently. Whilst an annulment can only be obtained in accordance with the statutory criteria, for those who have been married less than one year or have a strong religious or cultural objection to divorce, an alternative option may be an application for judicial separation. Judicial separation does not ‘replace’ divorce, nor is it a prerequisite for divorce but a different process entirely. It will not be appropriate for all couples, not least of all those looking for a ‘clean break’ but for some it just may be the most viable option.
What is judicial separation?
Judicial separation is a legal process by which a married couple’s separation is formally acknowledged by the Court, but their marriage does not legally end and remains in perpetuity until a Final Order for divorce or the death of either party. A couple that is judicially separated will still be each other’s spouses, but they will no longer be obligated to live together as husband and wife. Whilst there continues to be discussion around what this obligation means in practice (for example, there is no legal requirement for married couples to live together), for some couples having the ‘weight’ of the marriage taken off their shoulders is a crucial part of the separation process.
Process
The process for obtaining a judicial separation is broadly similar to that of applying for a divorce. As has been the case since the enactment of the Divorce, Dissolution and Separation Act 2020, divorce in England and Wales is a “no-fault” system, meaning that the Applicant (including joint Applicants) no longer has to provide the Court with their reasons for applying for a divorce, instead it is a tick-box exercise confirming that the marriage has irretrievably broken down. The same applies to judicial separation, with spouses able to apply on a joint or sole basis.
The fee for submitting an application for judicial separation is £403, and thus slightly less than the £593 for the divorce. The judicial separation application must be done ‘on paper’, meaning that the Applicant will need to send three copies of the application by post to the court, rather than the process being managed start to finish online like a divorce.
Once the application has been submitted, the Respondent (or Applicant 2 in a joint application) will have to acknowledge service, inform the court that they have received the application and agree for it to continue. Whilst it is possible for the Respondent to argue against the separation the grounds for doing so are limited to technicalities regarding jurisdiction and the validity of the marriage in the first place – if one spouse wants a judicial separation, it is not possible for the other to refuse it on the basis they want to stay together. In the same way as divorce, parties will then need to wait for the mandatory 20 week ‘cooling off’ period to expire before being able to take the next steps.
After 20 weeks, the Applicant(s) will be invited to make an application to the court for the judicial separation to be pronounced. Once the court receives this, the entire application will be checked again and then listed for pronouncement. Once the pronouncement is made at the administrative hearing (neither party is expected to attend) the Judge will issue a Judicial Separation Order, a copy of which will be provided to each party and the process is ended. This Order must be kept in a safe place as it is this Order that confirms the judicial separation.
This end contrasts with divorce, which after 20 weeks allows the Applicant(s) to make an application for Conditional Order in the divorce. Once the Conditional Order is pronounced, divorcing couples must wait a further 6 weeks and one day before applying for the Final Order in the divorce. It is the granting of this second order, the Final Order in divorce, which legally ends the marriage.
Whilst the process of judicial separation and divorce are similar, they are not interchangeable – it is not possible to start judicial separation proceedings and then ‘switch’ to a divorce application. If one spouse starts proceedings for a judicial separation, there is nothing to prevent the other (or even the Applicant in the judicial separation) from making an application for divorce in the future. Similarly, if parties are already judicially separated and want to end their marriage legally, they will need to start the divorce process from scratch.
Impact of judicial separation
Judicial separation does not legally end a marriage, nor does it end the spouses’ obligations to one another with regard to finances. The Judicial Separation Order, once granted, gives the Court powers similar to those available upon divorce to make financial orders including:
1. Lump sum payments;
2. Property adjustment orders and
3. Spousal periodical payments.
Additional powers exist regarding child maintenance payments and other payments for the benefit of children but for the purposes of this article, such payments need not be considered further.
Crucially, the Judicial Separation Order does not grant the Court the power to make Orders with regard to pensions including pension sharing or pension offsetting orders. Pension Sharing Orders can only be implemented upon receipt of the Final Order in the divorce. Judicially separated couples are not entitled to a Final Order because they are not divorced, hence the Court has no power to make financial orders with regard to pensions – the orders are not enforceable. This means that whilst couples who are judicially separated have almost all of the same financial orders available to them, regardless of what they might want to agree, the couple will remain inextricably linked until death or Final Order in divorce with regard to their pensions.
Similarly, whilst it is possible for the Court to make orders with regard to a couple’s finances, the Court is not able to make an order for a clean break i.e. regardless of what the parties may want, the Court cannot completely prevent either spouse asking the court to make further financial orders against the other to meet their needs. The only way to terminate any and all future claims is to agree or otherwise obtain a clean break order as to finances and a Final Order in the divorce.
Couples considering a judicial separation should consider obtaining specialist legal advice on a post-nuptial or separation agreement. Whilst nuptial agreements are not automatically binding, they can be highly persuasive in the event of divorce further down the line. If spouses can reach an all-encompassing agreement on their finances, even beyond the scope of the Court’s powers in judicial separation, then this may be a solution for some couples who want to make use of the court’s powers upon divorce, but via the judicial separation process. Such agreements are complex, requiring spouses to come to an agreement without the assistance of the court and to take independent legal advice.
For some couples, there may be real benefit in maintaining a financial link to their spouse even when they are separated. For example, whilst spouses remain legally married, it may be possible to share and retain any spousal benefits, including those arising from their pensions and upon death.
It should be noted that for the vast majority of those whose marriages have come to an end, it will be in their interests both financially and emotionally to bring matters to a close through divorce, allowing both spouses to move on with lives and move towards financial independence sooner rather than later. However, there are those for whom such an option is not appropriate, and Judicial Separation may represent a better way forward.