The Difference between Divorce and Judicial Separation

14 September 2017

The difference between divorce and judicial separation is that a divorce ends the marriage, whereas with a judicial separation does not.

It’s important to understand the differences between the two, as it can help you choose the right option for your individual circumstances. Although judicial separation is quite unusual, there are times when it will be preferable to divorce – for instance, if religious or cultural beliefs do not tally with divorce, or if one person has developed an illness such as dementia so that divorce seems like an excessive option.

What is a Divorce?

Divorce is when a married couple legally end their marriage. In England and Wales a couple must have been married for at least one year before divorce proceedings can begin, and must be able prove that the marriage has ‘irretrievably broken down’. To do this, the person filing for divorce (called the ‘Petitioner’) must state on the Divorce Petition that one of the five facts of divorce has taken place.

The five facts of divorce are:

  1. Adultery
  2. Unreasonable behaviour
  3. You’ve been separated for two years and you both agree to the divorce
  4. You’ve been separated for five years
  5. Desertion

Decree Nisi and Decree Absolute

The divorce process involves getting two ‘decrees’ from the Court – a Decree Nisi and a Decree Absolute. Once the Decree Absolute has been issued, the marriage is legally over and each person is free to remarry, but be advised that the Decree Absolute does not end the couples' financial commitments.

What is a Judicial Separation?

A judicial separation is when a married couple legally separate, but do not end their marriage. There’s no time limit in place, so you can apply for a judicial separation even if you’ve been married for less than a year.

You also don’t need to prove that your marriage has ‘irretrievably broken down’, although you do need to say on what grounds you want a judicial separation. These grounds are the same as the five facts of divorce listed above. 

The process involves getting just one decree from the Court – a Decree of Judicial Separation. Once this is issued you’re no longer legally seen as a couple, but you are still married.

Similarities and Differences

The main differences between a divorce and a judicial separation are:

  • A divorce legally ends a marriage, but a judicial separation does not
  • You can marry other people after getting a divorce, but not after a judicial separation
  • You have to prove that your marriage has irretrievably broken down to get divorced, but you don’t have to with a judicial separation
  • You can get a judicial separation at any point, but with a divorce you must wait until you’ve been married for at least one year
  • The Court cannot exercise its powers to divide a pension pot with a judicial separation, which it can with a divorce.

Otherwise the implications of a divorce and a judicial separation are largely the same in that:

  • You are no longer obliged to live together
  • The Court can rule how your assets should be divided (other than pensions)
  • If your ex is named as a beneficiary in your Will, the legacy will fail; unless you make a new Will specifically stating that you want him/her to be a beneficiary.

More articles