Judicial Separation

A divorce can only proceed if the parties have been married for over a year. If not, either party can apply to the Court for a Judicial Separation on the same grounds as a divorce petition. A Judicial Separation will not bring the marriage to an end and a petition for divorce may still need to be issued where parties eventually wish to bring the marriage to an end. Following a Judicial Separation the Court has similar powers to make financial orders as in divorce proceedings, except in relation to pensions.

The effect of a Judicial Separation is that the parties are no longer bound to cohabit. Following a Judicial Separation, if either party dies without having made a will the deceased’s estate will pass as if the other party to the marriage had already died. If the deceased has made a will the Judicial Separation will not affect the provisions under the will and if property is left to a spouse that spouse will benefit despite the Judicial Separation.

There are certain situations in which a Judicial Separation may have advantages over divorce:

A petition for Judicial Separation can be presented within the first year of marriage when divorce is not allowed.
Where one party objects to a divorce on religious grounds they can petition for a Judicial Separation.
Some people are not ready for divorce and find a Judicial Separation less stressful and it is a means for them to deal with the distribution of the assets of the marriage.
The court has power to make orders for sale of the matrimonial home or transfer specific assets from one party to another.
As the marriage is not brought to an end if one party has a pension with death benefits as a spouse the other party may still benefit and they may also be entitled to the widow/widower’s pension.

A separation agreement is usually used where the parties wish to separate but are not ready for a divorce. Sometimes the agreement is only intended to regulate the terms of a temporary separation, for example, who pays the mortgage and other outgoings.
A separation agreement can include a wide variety of terms dealing with, for example, maintenance, financial matters and arrangements for any children.
The agreement is flexible and, save for a handful of limitations, can include any terms which the parties deem appropriate. Agreements can also be varied by the parties if the amendments are agreed.
Financial matters often cause some of the biggest problems between couples after marriage breakdown; however, a separation agreement may reduce the tension primarily by providing financial certainty without having to involve the Court.
Separation agreements can be tailored to the needs of each couple and can, for example, deal with the following:

Living apart: The agreement to live apart, free from interference from the other spouse, is a key feature of a separation agreement.
Maintenance: Here one party agrees to pay maintenance to the other and/or for any children. However, such an agreement may not prevent the Child Support Agency becoming involved.
Property/Finances: Arrangements for the division of assets or the discharge of debts are a common feature of agreements.
Arrangements for the children: The agreement will often deal with the arrangements for any children.

A separation agreement is a contract and therefore is governed by the law of contract. Consequently, if it is not prepared properly then it may not prove to be legally binding. It is therefore important that both parties should receive separate and independent legal advice.

Provided the agreement is prepared properly, where a breach occurs, a claim can be brought for breach of contract.

Where the parties subsequently divorce, provided that the agreement is drawn up properly and is reasonable a Court is unlikely to interfere with it and will usually seek to uphold the provisions contained in the agreement.

There are some drawbacks to separation agreements, including the fact that they are harder to enforce than a Court order. In addition, a Court can, following an application by either party during subsequent proceedings, make orders that differ from the provisions of the agreement. However a Court will only alter the terms of an agreement with good reason, for example, if the agreement is unfair or defective.