A Brief Guide to Judicial Separation
The law regarding judicial separation is contained in sections 17 and 18 of the
Matrimonial Causes Act 1973 ("the Act"). Section 17 of the Act provides that a
petition for judicial separation may be presented by either party to a marriage.
It is presented on the ground that any of the facts referred to below (of which
a petitioner is required to satisfy the court) as proof of breakdown of marriage
for the purpose of obtaining a decree of divorce exists.
Those facts are as follows:
- That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
- That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
- That the respondent has deserted the petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition.
- That the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition and the respondent consents to a decree being granted.
- That the parties to the marriage have lived apart for a continuous period of at least 5 years immediately preceding the presentation of the petition.
Unlike divorce, a judicial separation petition may be presented within the first year
of marriage. The court hearing a judicial separation petition does not need to consider
whether the marriage has broken down irretrievably as it would do with a divorce petition.
If satisfied on the evidence that one of the above five facts has been proved, the court
will grant a decree of judicial separation. Unlike with divorce, there is only one decree
of judicial separation.
The effects of judicial separation are contained in Section 18 of the Act. This provides that:
- A decree of judicial separation operates to relieve the petitioner of the obligation of cohabiting with the respondent.
- Such a decree also affects the transmission of a deceased's estate if he or she dies intestate (that is, without having left a will) whilst the decree of judicial separation is in force. In such circumstances, any property in respect of which the deceased died intestate will devolve as if the other party to the marriage had already died.
For initial free advice please contact Caroline Ford by email or phone 020 7959 2422.
