A Judicial Separation

  • We have decided to split up but is there any alternative to a divorce?
  • My religion forbids divorce but I need to make financial claims. What am I able to do?
  • With a Judicial Separation are all financial claims available to me?
  • I cannot stand the prospect of divorce so perhaps a Judicial Separation will be much less bother?
The procedure for Judicial Separation is virtually the same as the procedure for divorce which is described in our website page for Divorce. The only differences are that the Petitioner does not need to allege that the marriage has irretrievably broken down and there is only one Decree (i.e. no need to apply for the Decree to be made Absolute).

The effect of a Decree of Judicial Separation is that:

  • The Petitioner is no longer under a duty to cohabit.
  • If one party should die without making a Will then more favourable rules as to inheritance will apply.
  • The Court has the power to make certain orders for financial provision in respect the parties and their children. The main exclusion from the range of orders that the court can make compared to when dealing with a divorce is that of Pension Sharing.
The main significant difference between Judicial Separation and divorce proceedings is that with Judicial Separation, the couple still remain legally married at the end of the court process.

This is a rarely used procedure but may be an option where couples wish to live as if they were divorced but cannot divorce for religious reasons; if they have been married for less than a year and are consequently unable to divorce; if they wish to defer divorce proceedings for a while or if they wish to avoid what they perceive as the ‘stigma’ or the trauma of a divorce. Some people see Judicial Separation as a ‘half way house’ so that they have not severed their ties with their spouse completely.

A Separation Agreement

  • What is a Separation Agreement?
  • We have separated and already agreed upon finances perfectly amicably. Is there any way that we can record this agreement in writing?
  • If we reach a settlement and then that is recorded into a Separation Agreement – presumably this is binding upon both of us and will then be sanctioned by the court in any future divorce proceedings?
  • When can a Separation Agreement be overturned?
  • My solicitor says that I need to exchange all sorts of financial disclosure with my spouse before the Separation Agreement is signed. Is this really necessary?

If you do not wish to divorce now but intend to do so in the future, by means of a divorce based upon either 2 or 5 years separation, then you may wish to regulate the arrangements that you have made by entering into a Separation Agreement. There is no obligation to do so and you may simply choose to live apart but it is advisable in order to try and create certainty.

The purpose of a Separation Agreement is to confirm that you have agreed to live apart and to record details of the financial arrangements that you have made with you former partner. It can state what should happen to your property and other assets and if you have agreed that one of you should pay maintenance to the other, it can confirm how much those payments should be and how often they should be made. The Agreement may also incorporate details of the arrangements that you have made about the children.

A Separation Agreement cannot oust the jurisdiction of the Court. However, the Courts frequently sanction such agreements as it is much better for the parties to have an outcome that they have decided upon themselves rather than to have one which is imposed upon them by a Judge. The Court will uphold a Separation Agreement if:

  • Both parties have sought independent legal advice - or have been given the opportunity to do so.
  • There has been full and frank disclosure of each party’s financial circumstances.
  • There has not been any undue influence or duress to enter into the Agreement.
  • There has not been an important change of circumstances.
  • The Agreement is fair.
A Separation Agreement can be useful during a trial separation as it will regulate financial issues in the interim and can be a first step towards coping with divorce. However, generally it is the precursor a divorce in the future.

Often a Separation Agreement is intended to form the basis of the final settlement within subsequent divorce proceedings and is good evidence of the parties’ intentions at the time of separation. The fact that there is a separation Agreement dealing with financial matters does not preclude either party from making a comprehensive application to the court for ancillary relief in later divorce proceedings. However, it may well be that with the parties having agreed their financial arrangements amicably and without the involvement of the court; this will reduce the chances of the matter being subject to litigation in the future.


John Turner, the principal of Blackdown Family Law Solicitors, is a highly skilled solicitor who has dealt with separation on a daily basis for over 22 years. He will advise you on the most efficient and cost effective way of proceeding, whilst taking into account all of the circumstances of your case. He understands that separation can be an emotional and a testing time for all involved and is there to help shoulder the burden for you, so that you can begin the process of rebuilding your life.

Areas of Family Law Work
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