Judicial Separation - what is this and is it appropriate for you?

Submitted by Azhar Hussain on Fri, 01/11/2019 - 15:16
judicial-separation

What is Judicial Separation?

This is a formal process by which you confirm the marital separation between you and your partner. There is often confusion regarding this process. It is very important to remember that this process does NOT end the marriage and at the end of the process you will remain married to your ex-partner. If you seek to dissolve the marriage, you should be considering divorce proceedings and we invite you to contact us to discuss your specific circumstances.

 

Why would Judicial Separation be considered?

 

The common question that arises is, why would you consider Judicial Separation?

Well, this depends on your specific circumstances. This course of action may be considered for the following reasons:

  1. The most common reason is that you may not want to dissolve the marriage because of personal reasons (i.e. religious or cultural issues);
  2. It may be the case that you are within the first year of marriage so are not eligible for a divorce, but you seek to deal with financial matters. In such circumstances, you could apply for a Judicial Separation and thereafter seek for assistance to progress financial matters between the parties. The one year bar to Divorce is explained within our article: Considering Divorce Proceedings or Alternatives to Divorce (https://optimalsolicitors.com/blog/Divorce-and-Dissolution).
  3. It may be the case that you seek to reserve certain benefits (i.e. pensions) which could be lost on Divorce. This will require consideration of the related documentation (i.e. policy documentation). If you have such an enquiry, please do not hesitate to contact us.

 

What if my circumstances mean that I want a formal agreement instead?

This will need thorough consideration dependant on your circumstances. If you want to proceed with divorce in the future and you do not want to proceed with a formal Judicial Separation, you could consider a Separation Agreement. If you have any questions in this regard, do not hesitate to contact us. 

Points to Note

  1. The application will require us to explain which fact(s) you rely on when making your application. These are the same as those applied in divorce proceedings (section 17 of the Matrimonial Causes Act 1973):
  1. ADULTERY – The Respondent has committed Adultery and the Petitioner finds it intolerable to live with the Respondent;
  2. UNREASONABLE BEHAVIOUR – The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent;
  3. DESERTION – The Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the Petition;
  4. TWO YEARS SEPARATION (WITH CONSENT) – The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the Petition AND the Respondent consents to the decree being granted;
  5. FIVE YEARS SEPARATION (NO CONSENT) – The parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the Petition.
  1. It is important for you to explain how the Court has jurisdiction to deal with this matter. This will depend on if you are domiciled here or satisfy certain residence conditions. Please contact us to discuss your options in this regard and we shall endeavour to assist you.

 

The Process

The application is referred to as the Petition. The person making the application is referred to as the Petitioner and the Respondent refers to the person replying.

Step One

We shall advise you regarding the process both orally and in writing. We shall take your instructions and draft the petition bundle. When this is approved and finalised, we shall file the documentation with the Court and seek for them to issue the documentation and assign it a case number.

Step Two

The Court will then consider the bundles and if they consider the documentation is complete, they will normally issue the case and assign it a case number. The Court will also then serve the documentation on the Respondent. The Respondent will then need to complete a document named the Acknowledgment of Service. This is a two-page document and must be completed by the Respondent.

If the Respondent decides they would like to Divorce you and not proceed with the Judicial Separation, they can file an Answer to your Judicial Separation petition and issue a cross-petition for Divorce. This would complicate the matters. If you have any questions in this regard, please do not hesitate to contact our office.

Step Three

This is known as applying for the decree of Judicial Separation. We would need to complete documentation in support - on your behalf. The Judge will then consider the file and consider if the legal requirements have been fulfilled. It is possible for the Judge to raise further queries at this stage.

The checks undertaken would include confirming that the proceedings are undefended. This would be if the Respondent has indicated on the Acknowledgement of Service that they do not want to defend the matter or there is no notice of intention to defend (after the 7 days for service have passed) or if the Respondent has failed to meet the timeline to file a formal Answer (when defending the proceedings).

If the Judge does agree, they will issue a Judicial Separation certificate. This would be further to a formal hearing, which the parties are not required to attend. In this hearing, the Judge will read out a list of names of all individuals who have reached this stage. Remember, the Court does not decide if the marriage has broken down irretrievably (as with Divorce). The Court will be assessing if they are satisfied, on the evidence, that fact(s) relied upon are proven. This is unlike Divorce proceedings which will have two decrees stages (Decree Nisi and Decree Absolute).

Step Four

It is important that you bear in mind financial matters throughout the process. These can be agreed by way of consent or may require formal and lengthy proceedings. If you would like to understand the possible financial orders you can claim, please do not hesitate to contact our office.

 

Does Judicial Separation affect wills?

This does not affect your current will and if you seek assistance in this regard, please do not hesitate to contact our firm for further guidance.

Reconciliation?

We often experience clients who become upset at the mention of reconciliation when they attend to discuss termination of their relationship. However, we have a duty to provide you the best possible service and this includes ensuring that you understand there are alternatives available. Therefore, it is always advisable to consider attending some form of reconciliation counselling before you embark on formal separation or divorce proceedings. It may be the case that you work through your difficulties and reconcile. This is not outside the realm of possibilities. However, we in no way force this upon our clients and if you consider that the relationship issues cannot be resolved, we can assist you accordingly. There are numerous organisations who can assist, such as Relate who provide relationship support and can be contacted on 0300 100 1234 or www.relate.org.uk/about-us.

 

Optimal Solicitors can reached on 0161 250 7771 or by way of our website www.optimalsolicitors.com

 

 

Author

Azhar Hussain
Azhar Hussain
Azhar is an experienced Solicitor specialising in Family, Civil and Criminal law. As Head of the Family Department, Azhar deals with all aspects of family law including divorce, financial ancillary relief, cohabitation disputes and issues relating to children. Azhar has recently advised on a complex ToLATA matter, which was successfully defended. His clients say "From the first conversation with Azhar, he had grasped the complexity of the issues and discussed my options. Azhar has been most professional and supportive from the very beginning. I feel reassured and secure with Azhar dealing with my case".
 
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