What are the differences between judicial separation and divorce?


2nd June 2021

Most people will have only heard of a divorce as being a formal way of ending a marriage, however it is also possible to obtain another form of formal marriage separation, called a judicial separation.

What is judicial separation?

A judicial separation does not legally end a marriage in the same way as a divorce, but it does formally end the marriage.

A judicial separation petition can be filed within the first year of marriage, unlike a divorce petition. Judicial separation proceedings follow a similar format to divorce proceedings, but the court does not consider whether the marriage has irretrievably broken down as it does for divorce, as legally the marriage continues. To obtain a decree of judicial separation, one of the five facts need to be proved, and these facts are the same as in a divorce petition: adultery, unreasonable behaviour, desertion, two years’ separation with consent, or five years’ separation.

There is only one decree of judicial separation, where in divorce proceedings a Decree Nisi must be pronounced, before the final Decree Absolute is issued by the Court, legally ending the marriage.

When a decree of judicial separation is issued by the Court, the couple’s marital obligations come to an end, and there are three principal effects of this:

1. No duty to cohabit

The parties no longer have a duty to cohabit (although this is no longer a legal duty for a married couple anyway). 

2. Financial orders

The Court can make almost all of the same financial orders as upon divorce, except for pension sharing or clean break orders.

3. Inheritance

If one party dies intestate, their property is distributed as if the surviving spouse had died (in the same way as a divorced couple), so they will not benefit. However, where there is a Will in place, this remains unaffected (unlike the position on divorce), so if a Will leaves property to the surviving spouse, that party will benefit, despite the judicial separation. In this scenario, under inheritance tax legislation, the spousal inheritance tax exemption would still apply as this only ceases upon a Decree Absolute being issued to end a marriage (which only happens through the divorce process). Where there is a Will, but the surviving spouse has been cut out of it, they could still make a claim for financial provision from the estate under the Inheritance (Family and Dependants) Act 1975, despite having a decree of judicial separation. However, a spouse in this scenario could only receive financial provision that was deemed reasonable for their maintenance, and not the higher standard that a spouse can receive when making such a claim (financial provision regardless of whether or not it is needed for their maintenance).

Why choose a judicial separation?

Reasons why some couples may prefer to obtain a decree of judicial separation rather than divorce include religious, cultural or personal reasons which mean that a couple do not wish to divorce. A couple may also wish to formally separate and obtain financial orders in the first 12 months of their marriage – this cannot be achieved via divorce until after one year of marriage. It may also be that one party wishes to preserve benefits such as pension rights that they would lose on divorce, but not on judicial separation.

How can we help

We have a team of experienced matrimonial lawyers who can guide you if you think any of the issues raised in this article might apply to you. We can go through all the options available to you and help you decide your best course of action. Contact our experts to see what we can do for you.

This article has been co-written by Rachel Knight and Simon Burge.

This article is part of Private Client Issues – June 2021

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