When to Have Judicial Separation Rather Than Divorce

02 June 2003

Judicial separation derives from the medieval divorce mensa et thoro. Before civil divorce became widely available, ordinary people could be released from their duty to cohabit with an adulterous, cruel or violent spouse by the Church Courts by means of a divorce from board and hearth. I imagine that very few of our clients are aware that they have any duty to cohabit with each other or feel any obligation to be released from that duty before separating.
From time to time clients tell me that, although they do not want a divorce until they have been separated for two years, they do want a formal separation. In most cases, such a request arises from a belief that the two years will not start to run until the separation has been registered in some way. In other cases the parties simply want to record the financial arrangements which have been agreed between them, usually because they wish to start implementing them, for instance by means of property transfer, before the agreement has been approved by the Court.

I imagine that very few of our clients are aware that they have any duty to cohabit with each other or feel any obligation to be released from that duty before separating.

The principal advantage of a petition for judicial separation in this day and age is that it opens the Court Room door to enable applications for all of the financial orders, with two exceptions, that the Court can make the whole divorce to those who cannot or will not petition for the dissolution of their marriage.

The grounds for a decree of judicial separation are the familiar adultery, behaviour, desertion, two years of separation and consent or five years of separation. However, it is not necessary to plead that the marriage has irretrievably broken down.

There are three reasons why a client might prefer to issue a petition for judicial separation.

First, because the client is unable to petition for divorce because they have not yet been married for one year. Because the Court can make the same orders for maintenance pending suit, interim maintenance or orders to prevent the disposition of assets, a client who had only been married for weeks or months might wish to apply for orders to maintain the status quo in financial terms until such time as they could issue divorce proceedings.

Secondly, one still occasionally meets clients who have a religious, moral or philosophical objection to the dissolution of their marriage. In my experience parties who can agree on something as fundamental as this can usually agree upon the terms of financial settlement. However, now and again a client who is not prepared to petition for divorce needs to drive a financial settlement through the Court without the co-operation of their spouse or to have the finality of a court order.

The third category is the client for whom the widow's pension payable under the terms of their spouse's pension is of such overwhelming importance to any financial settlement that they cannot afford to lose the status of widow in the event of their spouse's death. Invariably, these clients are those whose spouse's death is a more imminent consideration and who therefore tend to be more elderly clients themselves.

In some cases, if the spouse leaves no widow, a pension is payable to a nominated dependant at the same rate as would be payable to the widow. If the client takes the view that their spouse is unlikely to remarry in the time left available to them, then divorce can still be an option. Since any settlement for such a client would be likely to include an order for spousal periodical payments, the client could go back to Court to have their expectations secured or capitalised if they became aware of the subsequent remarriage.

The two major drawbacks of judicial separation operate with unintentional even handedness against the providing spouse and the receiving spouse.

The first drawback is that the Court does not have the power to make a pension sharing order following a decree of judicial separation. However, since the major disadvantage of pension attachment is that the income ceases to be payable on the death of the person with the entitlement to the pension, the widow's pension may alleviate the problem.

The second drawback is that the Court does not have the power to order that neither party shall be entitled to make any further claims under sections 24 (1) (a) or (b) of the Matrimonial Causes Act 1973. It is open to the parties to agree that in the event of the subsequent divorce proceedings.

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