Judicial Separation vs Divorce

While many people only know divorce as a method of formally ending a marriage, it is also possible to obtain another form of legal separation. This is called judicial separation

What is Judicial Separation?

Judicial separation is a type of formal separation which ends the marital or civil partnership obligations between a couple, but it does not terminate the actual marriage or partnership. This means that in the eyes of the law, couples will still legally remain married or within a civil partnership

A judicial separation allows couples to separate their finances and then apply to the court for financial orders. This route is usually chosen by couples for moral, personal, religious or cultural reasons where divorce or dissolution would not be accepted. 

Does Judicial Separation end a marriage?

No, judicial separation does not end a marriage and parties will not be able to remarry until an order of divorce is obtained.

Can you get divorced after a Judicial Separation?

Yes, you can get divorced after a judicial separation and it is important to remember that a judicial separation does not prevent you at any point from applying for a divorce. 

However, the rules for divorce still apply and you must have been married for at least 12 months before you can apply. You must also go through the normal divorce application and procedure as having a judicial separation first does not make a divorce any quicker.

Judicial Separation vs Divorce: Grounds

As we’ve mentioned, when you apply for a divorce, you must have been married for at least 12 months, whereas you can apply for judicial separation any time after the marriage. 

After the Divorce, Dissolution and Separation Act 2020 which came into effect in April 2022, couples only have to prove that the marriage has “irretrievably broken down”. Couples no longer need to rely on one of the five grounds for divorce: adultery, unreasonable behaviour, desertion, a two year separation with consent or separation for five years. 

When you apply for judicial separation, you are not required to prove that the marriage has broken down. Couples can simply state that they would like to apply for a judicial separation.

Judicial Separation vs Divorce: Procedure

When you apply for a divorce, there are two court orders that are made, and these are a conditional order and a final order. The court must be satisfied that the conditional order is met before moving onto the final order, and again the final order must be satisfied before the divorce is final and legally over. 

With judicial separation, there is just one order needed for the court to be satisfied that all legal requirements are met. However, like a divorce, judicial separation has a 20 week cooling off period to allow both parties to reflect on their decisions. 

Individual parties can no longer defend a divorce or judicial separation except in very limited circumstances, such as the Court does not have jurisdiction to deal with this case or the marriage is not valid. 

Judicial Separation vs Divorce: Pros and Cons

As with any kind of legal separation, there are pros and cons which you should be aware of. 

Judicial separation pros and cons 

Some of the pros of judicial separation include:

  • It gives you time apart – Even if you are going through a rough patch in your marriage, you may not want a divorce. Spending time apart from your partner gives you a good idea on what being divorced will actually be like. You may decide that divorce isn’t the best option for you after all.  You can do this without instigating any legal proceedings.
  • Financial considerations – For some couples, there are tax benefits that make staying together worth it. Those who are dependent on their spouses’ retirement may decide to stay married for a certain period of time, but in the eyes of the law, they are separated.
  • Cultural and religious beliefs – Many people come from cultures in which divorce is frowned upon. Judicial separation allows couples to live apart without having to get a divorce that goes against their beliefs. 

Whilst there are pros, there are also cons. Listed below are some of the disadvantages you should be aware of:

  • The process isn’t as easy as it seems – Going through a legal separation still takes a lot of time and money, and those who are looking for an easier route to divorce may be disappointed. You still need to divide your assets and property, and if you have children, you will need to find appropriate child care arrangements.
  • You can’t remarry – If you’re legally separated, you can’t get remarried as you are still legally married to your spouse. 
  • You can’t obtain a Pension Sharing Order
  • You can’t obtain an Order which dismisses all future financial claims as the marriage is still continuing.

Divorce pros and cons 

Like judicial separation, there are pros to divorce:

  • It ends your marriage – This is important to many people particularly those who have been in abusive or unhappy marriages.
  • You are free to remarry.
  • Financial independence – If you obtain a financial order as part of your divorce, then you can separate your finances and your financial obligations, including being able to obtain a share of your spouse’s pension which can be transferred to your name.
  • Clean break order – A clean break order ends any financial ties that the couple has to one another and dismisses any future financial claims so that it ensures the financial settlement is in full and final settlement of all financial claims arising from the marriage. This can only be obtained if there is or has been a divorce.

There are also cons to a divorce, including:

  • Longer process – The process takes slightly longer than a Judicial Separation as you need to wait 6 weeks and 1 day after the first Order (the Conditional Order) before you can apply for the final order to conclude the divorce.
  • 12 month wait period – Unlike judicial separation, you have to wait 12 months after your marriage before you can apply for a divorce. This means if you are experiencing difficulties within your marriage, you cannot legally end it until a year since your marriage has passed.   
  • Social Stigma – in some communities and cultures, divorce can still carry a stigma, but this has decreased over the years. However, some people still do feel a sense of failure when a marriage breaks down, whilst others feel a sense of freedom.

What are the main differences between Judicial Separation and Divorce?

The main difference between judicial separation and divorce is that judicial separation does not legally end the marriage, whereas a divorce does. As opposed to divorce, there is also no time limit in place, meaning you can apply for it as soon after your marriage as you wish. 

In a divorce, there are two orders, whereas in judicial separation there is only one. After a judicial separation, couples remain married and are therefore unable to remarry without obtaining a divorce.

Is it best to get a legal separation or divorce?

Every couple’s situation is unique, and so it is difficult to state whether legal separation or divorce is better.   In many cases, it’s always best to seek the assistance of a professional family law solicitor, such as those in our team at VM Family Law.  However, there are far more divorces than Judicial Separations, but only you can decide what is best for you.

We can guide you through the legal separation and divorce processes and provide you with all the information and advice you require to enable you to make the right decision for your future. 

If you’re considering applying for legal separation or a divorce, contact our team today to see how we can help you.

Our goal is to help our clients solve their family legal matters as smoothly as possible.

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