Judicial Separation – What If I Want a Formal Separation and Not a Divorce?
On occasion, I have been approached by clients who seek a formal separation but not a divorce. I must confess that this does arise on rarer occasions. I am asked, surely, there has be an option available for individuals who do not seek a formal divorce but do seek a formal separation! Well, yes, yes there is and the procedure is commonly referred to as a judicial separation.
In my capacity as Head of Family for LPS Solicitors, I am often questioned about alternatives to divorce and these questions commonly arise in initial meeting with clients. Due to the resounding impact of separation, I have a policy of discussing such matters at the offset. This allows me the opportunity to broach the sometimes-difficult conversation of reconciliation. I mean, I for one, have learned, that you should never say never, and all bases should be explained, especially when clients are suffering the high tides of emotion attached to the breakdown.
I mean, let us be honest, the breakdown of a relationship can be one of the most difficult times in an individual’s life and the fiery flames of the dispute are often frustrated by the toll of bearing the impact that can fall upon you and family. Sadly, these problems can often also be exasperated by personal issues, such as, you not wanting to proceed with a divorce due to religious or cultural issues.
These difficulties can be remedied by way of considering a judicial separation.
Okay, Go On, Tell Me About Reconciliation?
Hmmm I know, I know. This may not be what you want to hear at this stage. We completely appreciate that you have made an informed decision in respect of ending your relationship. We also completely appreciate that we work under your instruction and do not by any means seek to make you second guess your decision. This being said, we have a duty to advise you about reconciliation and further, to be quite honest, you would be surprised that the number of individuals who progress separation proceedings and thereafter change their mind and withdraw the proceedings.
If reconciliation is a viable option for you, there are some most excellent organisations that can assist you. It is not outside of the realm of possibilities that you may work through your difficulties and reconcile. There are organisations such as Relate (who provide relationship support) and can be contacted on 0300 100 1234 or at www.relate.org.uk/about-us.
Does a Judicial Separation Mean I Am Divorced?
First and foremost, did you know that a judicial separation does not conclude your marriage? I mean, it is a very important point to bear in mind. It is a point of confusion for many and you must remember that you will remain married despite this formal separation. In the future, should you wish to do so, you would need to consider divorce to formally dissolve the marriage and end the marriage. Now, I appreciate that this would be a pointless exercise if you do not seek to divorce in the first place, nevertheless, it is an important aspect for you to be aware of.
When Would I consider a Judicial Separation?
I mean this is not entirely a simple question to answer without knowing your specific circumstances. Nevertheless, generally speaking, the common scenarios that arise are as follows:
- I do not want to get divorced due to personal reasons. This is due to my religious and/or cultural views;
- I have only been married for one year and have been told I cannot get a formal divorce until one year has passed. However, I want to deal with the financial matters at this stage and not wait until the first year has passed;
- I have taken advice and will lose certain benefits If I divorce my ex-partner now. I want to reserve my right to such benefits and therefore do not want a divorce yet.
What Should I Initially Know?
There are some dated legal terms that you should accommodate yourself with. In such proceedings, the application is commonly referred to as a petition for judicial separation. If you are the party making the application, you will be named as the petitioner and the party replying will be known as the respondent.
In a similar fashion to a divorce, we would need to explain to the court the basis upon which you should receive a decree of judicial separation. I have specialised in previously heading up a family department with a majority eastern and northern European client base. This is something that highlighted the importance of dealing with international jurisdictional elements. When we are satisfied that the court has jurisdiction, we would prepare the application bundles and in doing so we would have to satisfy the court that one of the five facts relied upon applies in your circumstances.
This would be imperative when making the application and would require consideration of your personal facts. Thereafter, we would consider which of the following five facts best applies and progress the application accordingly.
- ADULTERY – The Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent;
- UNREASONABLE BEHAVIOUR – The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent;
- DESERTION – The Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the Petition;
- 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;
- 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.
What Happens?
Well, this is all very much fact dependent upon your circumstances. However, commonly the following milestones arise during the judicial separation proceedings:
- We will hear from you and provide you a free initial telephone conference. Thereafter, we will take your instructions thoroughly in order to avoid unnecessary delays, costs, and proceedings. This application (petition) will then be expertly drafted and forwarded to you for approval. When you have approved this, we will forward it to the court and seek for them to issue it, assign it a case number and serve a copy upon the respondent.
- The respondent will receive the bundle from the court and this is referred to as ‘being served’. Thereafter, the respondent is expected to complete a document named acknowledgment of service. This is a two-page document and must be completed for the process to proceed.
However, do not be concerned, we are not blind to the fact that sometimes the respondent can intentionally delay or obstruct proceedings. I have dealt with hundreds of separation proceedings across England & Wales and have set procedures to follow in order to ensure the proceedings can progress with the least possible, costs, proceedings and disputes.
If the respondent decides to defend the matter, they can file an answer to your application and can also issue a cross-application (cross-petition). This would complicate the proceedings but again we are well experienced and can assist you through this process accordingly. For conciseness, I will not go into this aspect within the article.
If the matter proceeds undefended and the respondent is agreeable – you can proceed to the next milestone.
- This is the stage at which we would make an application for decree of judicial separation. Do not worry, we would complete the documentation on your behalf and seek the formal separation to proceed. When the documents are completed, they would be forwarded to you for approval and once approved, they will be forwarded to the court for consideration. The entire documentation would be considered by judicial intervention and they would establish if the court is satisfied that a decree of judicial separation should be granted.
If the judicial discretion is agreeable with our application, the court can proceed to provide a certificate of judicial separation. This would be by way of a listed hearing, wherein the court will read out a list of all individuals progressing. In most circumstances, the parties will not need to attend. Thereafter, we will receive the certificate of judicial separation and shall forward the same to you – thereby completing this part of the process.
- I add in the following as a point of note. When such separation proceedings are progressing, it is important to ensure that you place importance and focus on financial matters between the parties. We can assist you with such proceedings and I will not delve into that rabbit hole herein. It is also possible to also consider a separation agreement with respect of financial matters, especially if you do not currently seek to proceed with a judicial separation.
This article has set out to provide you some initial information in respect of judicial separation and is drafted by our very own Head of Family Department, Azhar Hussain. If you would like to have a free no-obligation chat, please feel free to contact LPS Solicitors on 08009961807 or visit https://www.lpsolicitors.co.uk/