Separation

If you have not been married for a year, or do not wish to divorce because of religious or financial reasons, you can apply for a judicial separation. A judicial separation recognises that the parties are legally separated but does not dissolve the marriage so the parties are therefore not free to remarry.

You do not need to show that the marriage has irretrievably broken down but otherwise the facts relied upon are the same as in divorce and the procedure is similar to divorce except that there is only one decree – a decree of judicial separation.

You may apply for financial orders from the court on judicial separation although a clean break is only available on divorce.

Alternatively, you can record any agreement reached with respect to finances or the children within a separation agreement. This does not involve an attendance at court. Separation agreements are often used by parties who intend to divorce by consent after two years' separation but who wish formally to regulate the terms of any financial agreement or agreement reached with respect to the children.

Frequently Asked Questions About Separation

Are the terms of a separation agreement legally binding?

Provided there has been full and frank disclosure of each party's financial position, each party has had an opportunity to seek independent legal advice and there has not been a significant unforeseeable change in circumstances, the court will tend to uphold the terms of a separation agreement but it depends on the circumstances of individual cases.

What if I don’t want to issue a divorce now and I can’t agree financial matters with my partner, can I still have a separation agreement?

No.  Separation agreements can only reflect what has been agreed. If there is no agreement then you may need to consider issuing divorce or judicial separation proceedings (or other relevant proceedings) to enable the court to be invited to make an order.

If I file for judicial separation, can I then subsequently change to divorce?

Yes.  If a decree of divorce is sought by someone who has, or is proceeding with, a judicial separation petition where the parties have not been married for a year, it is necessary to file a fresh petition. However, if the petition is presented after the one year period has expired, it may be amended, provided no decree has already been granted.

 

 

If you would like to discuss how we might help you, please:

 

• call any of our office numbers listed at the bottom of this page;
• contact one of our specialists direct by clicking on their name below; or
• complete our enquiry form

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Members of our team specialising in this area:

Jane Charlton, Stephen Holmes, Jason Lazard, Sarah Wright

Amanda Asbery, Felicia D'Amelio, Vicki De Spirito, Jan Ewing, Peter Hampson, Sophie Jackson, Joanna McKenna, Yvonne Noble, Harbir Pattar, Felicity Shedden