Some people who separate from his/her spouse may not wish to divorce but may still want some legal recognition that the relationship has ended in order to feel that they can move on with their own lives. This article will discuss judicial separation as an alternative to divorce and how it is established.
A judicial separation does not legally end the marriage but it does have the effect of terminating all marital obligations. In addition, there is no marriage duration requirement, therefore, couples can apply for a judicial separation even if they have been married for less than a year.
There are a number of reasons why a person may prefer judicial separation to divorce, including the following:
They are opposed to divorce, usually due to religious reasons
There is an absolute bar to divorce within the first year of marriage and a judicial separation allows for a formal acknowledgement of the marital status for those that have been married less than a year
They want time and space to work out if they want to completely end the marriage
It may be difficult to prove the irretrievable breakdown of the marriage necessary for a divorce, and the parties do not wish to wait until they have been separated for at least two years before taking some formal action
A decree of judicial separation can be granted for any of the facts which would justify a divorce, for example, behaviour, adultery, etc. However, it is not necessary to prove that the marriage has irretrievably broken down, ie that there is no chance of reconciliation. The procedure for obtaining judicial separation is more or less the same as divorce, the only difference being that there is only one decree granted in judicial separation, provided the Court is satisfied that the Petitioner is entitled to a decree, whereas in divorce there are two decrees, namely decree nisi and decree absolute.
A judicial separation has three main effects, these are:
The spouses are no longer obliged to live together
The Court can exercise all the powers which it has to divide the matrimonial property just as in the case of a divorce. It is important to note, however, that the Court cannot make any orders in respect of pensions
The decree operates just like a divorce in terms of the effects on any Will; the spouse no longer takes any benefits unless a new Will is made specifically stating that the spouse is to benefit.
As listed above out of the three effects a judicial separation has, the second one is of the utmost importance as it allows both parties to enjoy the division of the matrimonial property despite their remaining married.
Judicial separation is not used often. For most people divorce would be a much better choice because judicial separation does not really allow people to move on.