Judicial Separation or Separation Agreement

Here we explain how to achieve a Legal Separation, a question that we are often asked.

The two options available are:

• to seek a Judicial Separation Order from the Family Court; or
• to enter into a Separation Agreement, which does not involve any Court Proceedings.

So, what are the differences between a Judicial Separation and a Separation Agreement?

A Judicial Separation requires a party to issue a Judicial Separation Application at Court stating that you seek to be judicially separated from your spouse.

The proceedings follow the same process as Divorce/Dissolution proceedings, although it is not necessary to demonstrate that the marriage has irretrievably broken down. Unlike an Application for Divorce, a Judicial Separation Application can be issued within the first 12 months of the marriage.

Within the Judicial Separation proceedings, the Court can make an Order in respect of finances. If the parties are not able to reach agreement, the Court can be asked to intervene and impose an Order.

It is not possible to obtain any type of Pension Order within Judicial Separation Proceedings. A Judicial Separation Order does not dissolve the marriage; the parties remain married to each other but free from the obligations associated with marriage.

If parties separate and are able to reach agreement in respect of finances, a Separation Agreement can be prepared setting out the terms of their agreement. Amongst other things, it will specify that the parties intend to live separate and apart. It can specify whether it is intended that there be Divorce Proceedings at a later date, who will issue and on what basis. It is, in effect, a contract between the parties.

It is not possible for the Agreement to bind a pension company to sharing the value or the income of a pension between the parties. The pension company would require an Court Order within Divorce/Dissolution Proceedings in order to implement such.

A Separation Agreement is not necessarily binding on the Court in future proceedings, although it might be a persuasive factor of the case. If one party sought to depart from the terms of the Agreement in subsequent proceedings, the Court would consider whether the parties exchanged full and frank information and documents about their respective finances and had taken independent legal advice. If they have, the Court is less likely to depart from the terms of the Agreement.

In both Judicial Separation and Separation Agreement cases, the parties remain married to each other and as such are not free to remarry. In both cases, the parties should ensure that they make new Wills.

If you would like to discuss this or your situation generally, please contact a member of our Family team.

[Originally published in April 2016; updated in June 2024]