What Is Legal Separation?

legalbite
August 2, 2012

Legal separation is a process where you can legally separate from your spouse but you remain married without some of the normal legal obligations to your spouse. Some people may prefer this option to divorce as they may not want to divorce as it goes against their religious beliefs, or they have not been married for long enough to commence divorce proceedings for example.

There is only one ground for divorce and that is a marriage must have irretrievably broken down. If it is difficult to prove the grounds for divorce are that the marriage has irretrievably broken down, that is to say you or your spouse has committed adultery, has behaved in an unreasonable manner, or there has been a desertion for more than two years, a judicial separation could be a simpler alternative for the interim. However you are not allowed to remarry if you enter into a legal separation rather than completing a divorce.

A decree of judicial separation has the following effects:-

(1) The spouses are no longer obliged to live together;

(2) The court can exercise all the powers which it has to divide the matrimonial property and assets etc. just as it can in the case of a divorce. Just like divorce it can include custody arrangements, parenting time, child support, and, if appropriate, spousal maintenance orders. In this way it could also be an interim step to a divorce and financial settlement order as the terms of any judicial separation agreement can be used in the divorce/financial settlement proceedings

(3) It has an effect on a Will in the same way as a divorce. The spouse will no longer take any benefit from the estate unless a new will is made specifically stating that is to be the case.

How do I start proceedings for a Legal Separation?

The process for a legal separation is similar to that for a divorce as you file the initial petition with any necessary statement of arrangements for children. The Respondent should then complete the acknowledgement of service. If there is no objection to the petition the Petitioner will have to then complete the necessary affidavit and request for directions.

If it is uncontested, then the decree of judicial separation will be pronounced at a certain time and date as the decree nisi in divorce proceedings would.

This would then complete the judicial separation, whilst in divorce proceedings you would still need to apply for the decree absolute after the decree nisi certificate is pronounced.

When a couple plans a marriage or civil partnership, it is difficult to comprehend that the relationship will breakdown, and deciding on a Legal Separation or Divorce will probably be one of the most difficult decisions anyone will have to make, especially when there are children or complex assets involved. It is always advisable to seek independent legal advice from a Family Law Solicitor who will be able to advise you on all the available options open to you.

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