Judicial separation—rare bird or damp squib?

21 Mar 2019 | 6 min read

Elizabeth Simos and Fraser Wright outline the process for judicial separation, the implications in relation to financial provision and the alternative routes available for couples who may not yet wish to divorce. 

Judicial separation (or a separation order in relation to a civil partnership) in England and Wales can be a precursor, or an alternative, to divorce or civil partnership dissolution proceedings. It is a relatively rare legal process through which the separation of spouses/civil partners is formalised, without however terminating the marriage or civil partnership. The Ministry of Justice Family Court Statistics Quarterly published in September 2018 revealed that only 96 judicial separation petitions were filed in the third quarter of 2018, in contrast with the 29,971 divorce petitions filed in the same period.

Judicial separation can be an option where a divorce or dissolution is not viable on religious grounds, or where pensions or other benefits would be extinguished on divorce or dissolution, or indeed within the first 12 months of marriage, during which divorce or dissolution proceedings cannot be commenced.  

The main effects of judicial separation are that spouses need not cohabit, the court may make an order on the parties’ finances, and if one party dies without a Will, the surviving spouse will not benefit (although a Will otherwise remains unaffected).

Importantly, judicial separation does not terminate a marriage or civil partnership, nor does it preclude either party from eventually, or in parallel, filing for a divorce or dissolution - which is why the latter is usually the preferred option. 

Procedure

In process, judicial separation or an application for a separation order is very similar to divorce or dissolution. The court does not however consider whether the marriage or civil partnership has irretrievably broken down, and in contrast to divorce or dissolution the court only makes one decree instead of two.  

The facts on which a decree of judicial separation or a separation order can be based are mainly the same as those for divorce or dissolution (section 17(1) of the Matrimonial Causes Act 1973 (MCA 1973) and the equivalent provisions in section 44(5) of the Civil Partnership Act 2004 (CPA 2004), with some variations):

  • adultery, where the parties are married, and the adultery is with a person of the opposite sex – note that adultery is not one of the facts for a separation order in relation to a civil partnership
  • unreasonable behaviour
  • desertion, although MCA 1973, s 4(5) will not apply (as to the period of desertion)  
  • two years' separation with the respondent's consent, although MCA 1973, s 10 will not apply (as to recession of a decree where a respondent has been misled into giving their consent, and consideration of their financial position)
  • five years' separation, although the defence of grave hardship in MCA 1973, s 5 will not apply

The form used to apply for judicial separation or a separation order (Form D8) is the same, while the filing and service requirements also reflect those of divorce/dissolution. The acknowledgment of service however refers to judicial separation or a separation order rather than divorce and must be returned to the court within seven business days. The application for a decree of judicial separation or a separation order can made on expiry of this time limit, if the proceedings are not defended.

Financial orders

Notably, most of the financial orders the court can make on divorce can also be made on judicial separation (via an application in Form A), including (with CPA 2004 equivalent provisions):

  • maintenance pending suit (MCA 1973, s 22)
  • periodical payments orders (MCA 1973, s 23)
  • lump sum orders (MCA 1973, s 23)
  • property adjustment orders (MCA 1973, s 24), and
  • pension attachment orders (MCA 1973, s 25B)

Crucially however, the court cannot make a pension sharing order under (MCA 1973, s 24B) on judicial separation or the making of a separation order, nor can it make a clean break order (MCA 1973, s 25A).

Legal fees, and the source of funding available can also be an important factor to consider, particularly in the arguable absence of finality afforded by a decree of judicial separation, and the potentiality for duplication of legal fees in the event of a future divorce.

In light of the growing demand for litigation loans, it is worth noting that the reliable computation of assets, and visibility on an eventual final distribution may be key considerations. On a financial claim on divorce for example, loans are often secured by an assignment on the proceeds arising from a financial order. In that scenario the release of funds may be reliant on Form A having been filed with the court, based also on the level and reliability of disclosure of assets at that stage, usually assessed on exchange of Forms E.

Independent financial advice is necessary on the wide range of options for the financing of legal fees, particularly if a less common legal route is being pursued.

Alternatives

Judicial separation is not the only alternative to divorce, and other options may better address a party’s specific needs, for example:

  • where the marriage has not irretrievably broken down, family or couples’ therapy can be explored with a view to facilitating a reconciliation
  • if a trial separation is occurring with a view to an eventual divorce, a separation agreement governing the parties’ finances during the intervening period may be appropriate
  • if timing is the concern, an annulment within the first 12 months might be an alternative, however the petitioner would need to show that the marriage was either void or voidable
  • if pensions or other benefits cannot be shared on divorce, the value can potentially be offset from other assets as part of a wider financial order  
  • where the parties want to agree the distribution of finances in the event of a divorce while they are still married, if this is not an imminent possibility a post-nuptial agreement could be considered instead, and
  • where a marriage has completely broken down, it may simply be appropriate to commence divorce proceedings and apply for a financial order from the court

Whatever the preferred route, tailored advice from a solicitor and independent financial adviser on the legal, financial and cost implications is crucial at an early stage.

Elizabeth Simos, is an associate solicitor at Ketley Miller Joels and was the Family Law Awards Family Law Young Solicitor of the Year 2018, and Fraser Wright is senior partner at the specialist matrimonial finance provider, Quanta Capital. 

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