Grounds and timing
A decree of judicial separation may be granted on several grounds, the most commonly used being that the marriage has broken down to the extent that no normal marital relationship has existed for at least one year. There is no two-year living apart requirement, which is the principal practical difference from divorce: a spouse who needs court-ordered provision quickly, particularly maintenance, exclusive occupation of the family home or a freezing of assets, may not be able to wait.
Separation agreements as an alternative
Many separations are resolved by a deed of separation negotiated between solicitors or through mediation, without any court application. A separation agreement can deal with the family home, maintenance, succession rights and the arrangements for children. Its limitation is that a court cannot make a pension adjustment order on foot of a separation agreement alone, and the agreement itself becomes a factor the court must have regard to in any later divorce under section 20(3) of the 1996 Act.
The second bite problem
Because divorce requires the court to be satisfied that proper provision is made as at the date of the divorce, a spouse who concluded a judicial separation or separation agreement years earlier can seek further provision on divorce. The courts have limited this in cases where a full and final settlement was intended and circumstances have not materially changed, but the risk of a second application is real, and it shapes how settlements should be drafted. For clients with appreciating assets, farms and businesses in particular, the drafting of full and final settlement clauses and the timing of the eventual divorce deserve careful thought.
Strategy for asset-heavy cases
In high net worth cases, the decision between judicial separation now and divorce later, or a single consolidated divorce application, often turns on valuation timing. Asset values move: land prices, company earnings and pension fund values at the date of trial are what the court works with. Sequencing the litigation with that in mind is part of the job.
Frequently asked questions
Can I get divorced if I already have a separation agreement?
Yes. The separation agreement does not prevent divorce, but the court must have regard to its terms when deciding what proper provision requires on the divorce.
Is judicial separation quicker than divorce?
It can be commenced earlier because there is no two-year living apart requirement, but the court process itself is broadly similar in length once proceedings issue.
To discuss a matter in confidence, contact Richard O'Shea at Mary Molloy Solicitors, 2 Rose Inn Street, Kilkenny. Arrange a consultation. This page is general information, not legal advice.