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Divorce vs Judicial Separation
In this article, we explore an alternative to divorce known as "Judicial Separation". Unlike divorce, this formal process allows couples to separate without legally ending their marriage, offering flexibility for various circumstances. Ultimately, your choice between divorce and judicial separation depends on your specific needs, goals, and the expert guidance of a family solicitor.
We are often asked by clients whether there is a formal alternative to divorce or is there a way they can divide their assets before starting the formal divorce process. This could be because they are not yet ready to cut their ties to their spouse, for religious reasons they cannot pursue a divorce or perhaps they are considering divorce in later life and do not plan on remarrying or perhaps do not want the finality of divorce.
There is an alternative that provides formal marriage separation which is called judicial separation.
What is judicial separation?
Judicial separation is a process of formal marriage separation that follows a similar format to the divorce application process. However, unlike when you divorce and your marriage is legally brought to an end, at the conclusion of judicial separation proceedings you will remain married. Further, in judicial separation proceedings the court will not consider if the marriage has irretrievably broken down as your marriage will legally continue. As of 6 April 2022, when no fault divorce law was introduced, you need only to state that you are seeking a judicial separation, without the need to prove this based on 1 of 5 facts.
When your divorce concludes you will receive a Final Order previously known as a Decree Absolute as opposed to a Decree pronouncing formal separation in a judicial separation application.
If you decide to pursue a judicial separation and given you will remain married, you may decide to divorce at a later date. If you choose to do this, you will need to make a new application for divorce.
Can I still obtain a Financial Order?
Whether you apply for a divorce or judicial separation, you can still ask the Court to make a financial order that details how your marital assets will be divided between you. However, unlike when you divorce, you cannot ask the Court for a Pension Sharing Order or a Clean Break Order in judicial separation proceedings.
What is a Separation Agreement?
A Separation Agreement is a document that sets out how you wish to divide your assets after separating.
If you do not wish to apply for a divorce or you wish to agree to divide your assets first, a Separation Agreement allows you to do this without going through the divorce process.
A Separation Agreement does not need to be approved by the Court and is technically not legally binding. However, it can act as a formal contract. If the Agreement is drawn correctly and both parties receive independent legal advice then unless there has been a substantial change in circumstances such that it would be unfair for the Agreement to be made binding, upon the divorce you can ask the Court to convert the Separation Agreement into a Financial Order upon divorce. Once a Financial Order has been made it will be legally binding.
Why choose Divorce over Judicial Separation?
- 1. You can obtain a binding Financial Order that provides for a clean break in life and in death.
- 2. If applicable a Pension Sharing Order can be made. To confirm a pension share cannot be implemented until after the Final Order has been granted.
- 3. You are free to remarry.
- 4. You will only require one set of proceedings. If you apply for a judicial separation then later decide to divorce, your costs will be significantly more than just applying for a divorce from the outset; and
- 5. If you were to die intestate (without a will) or your spouse is named as a beneficiary within your will, your spouse will be treated as having died before you, so they do not benefit from your death.
Why choose Judicial Separation over Divorce?
- 1. The process will be quicker. There is only order for judicial separation however in divorce proceeding a Conditional Order must be pronounced before a Final Order can be made which legally ends your marriage.
- 2. You will remain legally married. Therefore, if you do not wish to divorce or divorce is not an option this will allow you to formally separate and still deal with the division of your assets.
- 3. Judicial separation proceedings can cost less than divorce proceedings.
- 4. Where there is a Will in place that names you as a beneficiary, should your spouse die, the Will remains unaffected, and you will still benefit despite being formally separated.
- 5. For inheritance tax purposes the spousal inheritance tax exemption still applies. If you were to divorce, this exemption ends when the Final Order is granted.
- 6. You can apply for judicial separation in the first 12 months of marriage unlike divorce which cannot be applied for until after 1 year of marriage.
Deciding whether to seek a judicial separation or commence divorce proceedings can be both challenging and stressful and the support of an expert family lawyer is highly advisable.
Written by: Sarah Rose (Solicitor)
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