Legal Separation Vs Divorce UK | Separation Agreement

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What do you mean by judicial separation?

When a marriage turns sour there are a few different ways to handle the problem. Before entering a divorce many people decide to separate on a trial basis. This is a good way to resolve any outstanding conflicts and move on with your life.

Most couples will enter a period of separation before they consider a divorce and this period of separation can be used to iron out any differences.

The UK government is now keen for couples to avoid going to court, by making them attend compulsory mediation information sessions to try and get them to reach agreements, thereby avoiding court, and of course saving the taxpayer, the expense of using the court system.

It will also save having to engage a separation lawyer or solicitor to fight a case, and the costs that will obviously entail.

What is a Judicial Separation?

Judicial separation, or legal separation, is a legal process which is approved by the court, very much like a divorce in England & Wales. However, the process is much more formal than a couple just deciding to live apart as it is about more than simply authorising a separation.

A judicial separation enables the court to make orders about rights to property after separation, the division of assets & debts and decisions regarding the wellbeing of children.

The court orders are like those which can be made with a divorce, but without the finality of legally ending the marriage.

Why get a legal separation?

As you are still married the judicial separation is a procedure often favoured by people of certain religious faiths who may not believe in divorce, such as Roman Catholics, where divorce is regarded as technically illegal except for in very limited circumstances.

You can apply for a judicial separation at any time after getting married, you do not have to wait for a year as you would if filing for divorce. Furthermore, it should be noted that obtaining a judicial separation does not prevent either party from filing for a divorce later.

A judicial separation also acts like a divorce in terms of its effect on a Will. Following the Decree of Judicial Separation, a spouse can no longer be a beneficiary, unless a new Will is drafted specifically stating that to be the case.

How to file for Legal Separation

A judicial separation can be started by either spouse, the petitioner, by lodging a document called a petition with the court and paying the appropriate court fee. The petition sets out the details of the marriage, the names of both parties and of any children, together with the grounds chosen for the judicial separation.

The court then issues the petition by stamping it and sending a copy to the other spouse, called the respondent.

Once the respondent has received the petition they are obliged to fill in a form called an acknowledgement of service to confirm receipt and return it to the court within 7 days. The court will forward a copy to the petitioner.

At this point, if the respondent agrees to the judicial separation it will be called an uncontested judicial separation. However, if they do not agree it will be a contested judicial separation and they will have 21 days to file a response to the court.

Next, the petitioner swears a statement under oath, called an affidavit, which confirms the contents of the petition and sends it to the court.

Decree of judicial separation

Once the court has checked the documents, and if it’s uncontested the documents are approved, a date will be set for the pronouncement of the Decree of Judicial Separation.

When a judicial separation is uncontested and both parties complete and return all documents promptly the process will usually take 4 to 6 months, but it may take the court longer to process if any issues are contested.

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