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A decree of judicial separation is a court order similar to divorce, under which the couple remains legally married but their normal marital obligations cease and they no longer have to go on living together.
In judicial separation cases, the court has the same range of powers as in divorce cases to issue orders on dividing the matrimonial property and providing for the custody, support and maintenance of children. A judicial separation also negates any provision for the spouse in a will, unless a new will is made which reinstates them as a beneficiary. However, unlike a divorced spouse, one who is judicially separated may still be eligible for benefits under a pension scheme on the death of their partner.
The application procedure for a judicial separation starts with one of the parties presenting a “Judicial Separation Petition” to the Court. A divorce petition can be used for this purpose, as long as it is amended by deleting the references to the marriage having "broken down" and the intention to dissolve the marriage. The Courts also require the completion of a “Statement of Arrangements" form, including similar information to that needed for a divorce, and the original Marriage Certificate, or a certified copy of this. The court fees payable are at a similar level to those for a divorce petition.
The grounds for judicial separation are much the same as for divorce, except that there is no requirement to prove that the marriage has broken down irretrievably, and the couple does not have to have been married for any minimum length of time. As with divorce petitions, grounds for judicial separation are adultery, unreasonable behaviour, desertion for at least two years, separation with consent for two years or separation without consent for five years. There is also the additional ground for judicial separation of ‘being habitually drunk'. Unlike in the case of divorce, only one decree is issued, once the court is satisfied that the requirements for judicial separation have been met.
Judicial separation is relatively rare, and very few judicial separation decrees are issued in each year. In 1998 for example, only 518 decrees for judicial separation were issued across the whole of England and Wales, compared with 143,879 decrees nisi granted for divorce in the same year.
The main circumstances under which judicial separation takes place are when one or both of the parties are opposed to divorce, perhaps for religious reasons; when the couple have been married for less than a year, during which there is an absolute ban on divorce; or when it may be difficult to provide the evidence of irretrievable breakdown of the marriage which is necessary for divorce.
A couple who have obtained a judicial separation can still apply for a divorce later on, after they have been legally married for at least three years. If they do so, the information they originally submitted in the application for judicial separation can be used again by the courts in considering their application for divorce.
If a couple decides that they wish to become full marriage partners again, they can apply for their judicial separation to be rescinded by the courts.
Some lawyers advise that it is seldom in anyone’s interest to seek or to consent to a judicial separation, rather than a divorce, unless both parties are opposed to divorce for religious or other personal reasons.