A woman attempted to sue her former lawyers for professional negligence, claiming that they had failed to advise her that finalising divorce proceedings would cause her marriage to end.
The woman claimed that the solicitors should have made it clear to her that a divorce would terminate her marriage. She claimed that the solicitors failed to regard her Roman Catholic faith and should have advised her about the alternative of Judicial Separation, or about the impossibility of pursuing divorce proceedings to a clean break settlement without thereby inevitably bringing about the final termination of her marriage.
The case, made against two firms of solicitors, had previously been rejected by the Court but came to light and was reported following a later appeal regarding other aspects of her case.
What is the difference between divorce and Judicial Separation?
Ending a marriage
A Decree Absolute of Divorce brings a marriage to an end and Judicial Separation does not.
However, it is more than a husband and wife living apart. A Decree of Judicial Separation can be sought on one of the five facts that are available for divorce but it is not necessary to prove that the marriage has irretrievably broken down.
In divorce there are two Decrees: Decree Nisi and Decree Absolute. In Judicial Separation there is one Decree pronouncing Judicial Separation. The parties remain married and are therefore not able to remarry.
The Court is able to make the range of financial orders that are available on divorce, save for Pension Sharing or Pension Attachment Orders.
The Decree of Judicial Separation has the same effect as a Decree Absolute of Divorce upon a Will. The spouse can no longer take any benefit under the Will unless there is a new Will specifically stating they are to do so.
Petitions for Judicial Separation are very rare but there may be reasons for a party seeking this rather than a divorce, such as one or both of them having religious beliefs or the parties not having been married for the requisite one year required for a divorce.
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[Originally published in February 2014; updated in September 2018]