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 Final Order of Divorce brings a marriage to an end but Judicial Separation does not end the marriage.

However, Judicial Separation is more than a husband and wife living apart.

A Judicial Separation Order can be sought from the Court but it is not necessary to prove that the marriage has irretrievably broken down.

Orders

In divorce there are two Orders: The Conditional Order (previously known as Decree Nisi) and the Final Order (previously known as Decree Absolute). In Judicial Separation, there is one Order pronouncing Judicial Separation. The parties remain married and are therefore not able to remarry. As with the new divorce law the parties can submit either a sole or a joint application to the Court.

Within Judicial Separation proceedings 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 pronouncement of Judicial Separation has the same effect as a Final Order 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.

Applications 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 period required for a divorce.

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

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