What is the difference between divorce and Judicial Separation?

    What is the difference between divorce and Judicial Separation?

    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.

    Decrees

    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.

    Wills

    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.

    To find out how to achieve a Legal Separation, therefore remaining married, visit our blog post explaining the difference between Judicial Separation and a Separation Agreement.

    We're here to help you

    We are committed to ensuring that our clients achieve the best possible outcome in as stress-free a manner as possible.

    We have specialist family lawyers to advise on all aspects of relationship breakdown, including divorce and civil partnership dissolution, financial settlement after divorce, and child custody and support. For more information, please contact our Family Law Team who would be happy to advise you.

    Are you considering getting a divorce? Download our free guide and find out the six key decisions you need to make.

    New call-to-action

    [Originally published in February 2014; updated in September 2018]

    For legal advice on Family Law

    Get in touch

    Related posts