Alternative to Divorce - Judicial Separation

Tuesday Dec 13, 2016 Divorce


There are a number of reasons as to why one may not wish to end their marriage by the dark doom of divorce, religious reasons tends to be up there or perhaps just the simple fact that one may not be ready for the finality that a divorce bestows. There may be that faint desire that the relationship may not be working right now but could do in the future after some much needed time apart. One other reason maybe that legally you are barred from applying for a divorce. This would come into play when a couple have been married for less than a year – as the law proclaims that a married couple must be wed for at least the full 365 days before application for the legal dissolving of that marriage can be instigated. In the interim the couple may choose to pursue a separation whilst sorting out the sticky finances or even opt in for the formal judicial separation instead. With a JS, whilst not being ‘divorced’ the couple will be, in the eyes of the law at least, legally separated.


Essentially what you may be asking yourself is what the real difference between a divorce, separation and judicial separation is. Well, one can ‘separate’ from their spouse by swiftly leaving them whether it is by agreement or not. There is no pressure to make that break up formal by way of a legal arrangement but there can be benefits from actually doing so, or at the very least sorting out the messy bits of the break up, a lot of people are left thinking; what do we do with all the stuff?!


One can, if possible, reach agreements on primary issues such as the children, finances and the division of assets. Decisions can also be reached on what should happen to the family home. If you jointly own your property then what is normally understood is that if one spouse dies then their share of the property automatically goes into the hands of the remaining spouse. Of course if the property is sold then both spouses jointly own the proceeds. If you are separating then a solicitor could swoop in to document and create two separate shares in the property so that each spouse’s shares will pass to alterative heirs if the other dies as well as entitling you both to specific shares from any proceeds of sale.

Judicial separation is another option. Spouses will remain legally and technically married but you would be asking the court to recognise your separation formally. This means you can apply to the court for certain orders dealing with financial and property issues, as in divorce proceedings.

The process to obtaining a judicial separation is near the exact same to that of a divorce. One issue that people should be made aware of at the start of any application for a Judicial Separation is that if thereafter they decide they in fact want a divorce then the application will have to start again, from the beginning. There is no way of simply transferring your Judicial Separation document into a Decree Absolute [final divorce paper], you will, by law, have to reapply. This can be off putting for many as the prospect of going through the process more than once can understandably be a stress factor, no matter how amicable the separating spouses are.

So if you’re looking for a Judicial Separation be clear on the points above as the order does not allow you to remarry or move on from a broken relationship as independently.