Judicial Separation

If you are considering a separation from your spouse, but do not wish to divorce, either for religious or other personal reasons, you may wish to consider a Judicial Separation. Judicial Separation is the method of obtaining a Decree from the Family Court, which confirms that both parties have separated, without legally terminating the marriage. Unlike an application for divorce, which requires parties to have been married for a minimum of one year, an application for Judicial Separation can be made at any time.

If you are considering a separation from your spouse, we recommend that you contact our offices and speak to our solicitors, who will thoroughly assess your circumstances, understand your emotions and will provide comprehensive advice as to the best possible method of ending your marriage.

Why should I opt for Judicial Separation?

If you have separated from your spouse, yet do not wish to divorce each other, a Decree of Judicial Separation would effectively ensure that the Courts record your separation. Additionally benefits of Judicial Separation are that it would be possible for you to make an application for a Financial Remedy and the division of matrimonial assets (akin to the divorce process) and that any provisions made in favour of your spouse in your will, will be rendered ineffective. However, you should note that in cases of Judicial Separation, the Courts will not be able to deal with the division of pension rights. A further disadvantage of this method is that neither party following a Judicial Separation would be free to marry. For further advice as to whether Judicial Separation is appropriate for you, kindly contact FisherWright Solicitors.

What will I need to evidence?

As opposed to divorce you are required to evidence the ‘irretrievable’ breakdown of your marriage, in order to apply for Judicial Separation you will solely be required to evidence that one of the five ‘facts’ of divorce have occurred. If one or more of the five ‘facts’ exist, you will be eligible to apply for Judicial Separation, these facts include:

Adultery: Which is outlined as ‘sexual intercourse’ with another individual who is of the opposite sex. If your partner has committed adultery you will be required to further evidence that you find it ‘intolerable’ to live them.
Unreasonable Behaviour: You must prove that your spouse has behaved in such a manner, that you cannot be ‘reasonably expected’ to live with them. Such behaviour is subjective on the individual who is starting the divorce.
Desertion: You must evidence that your spouse has ‘deserted’ you for an unbroken period of 2 years. You must evidence that your spouse had a clear aim to desert you, and that you did not consent to such desertion. .
Two Years Separation with Consent: You must prove that you have separated from your spouse for an uninterrupted period of two years prior to commencing divorce proceedings and that your spouse has consented to the divorce.
Five Years Separation: You must prove that you have been separated from your spouse for an uninterrupted period of five years.

Stage 1

What is a defended divorce?

Akin to divorce you will be required to file a petition to the Court for a matrimonial Order, you will be required to outline which of the above ‘facts’ you wish to rely on and the reasons as to why you wish to obtain a legal separation. Specialist advice should be sought in relation to your legal rights and in relation to the contents of the petition as any errors or omissions could have adverse consequences. Once the Court has received the petition, it will issue and send a copy of the same to you and your spouse.

Stage 2

Acknowledgement

Once the Court has sent a copy of the petition to your spouse, your spouse within a stipulated period of 7 days will be required to complete a form namely the ‘Acknowledgement of Service’ to ratify that they have received the petition and to confirm whether or not they will be defending the same.

Stage 3

Application for the Decree of Judicial Separation

Once your spouse has acknowledged the petition, you will then be able to make an application for the Decree of Judicial Separation, the Court will then consider the petition and documents and will then consider your application and if satisfied will pronounce the Decree of Judicial Separation confirming that you and your spouse are have legally separated.

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