Together, apart: making sense of judicial separation as an alternative to divorce

Judicial separation is a formal marital separation. It brings an end to your ‘marital obligations’ to one another but, unlike divorce, judicial separation does not end the marriage – couples who are judicially separated remain legally married. 

As above, it can be the preferred route for couples who do not wish to divorce for whatever reason, but wish to formalise their separation and ensure that appropriate financial arrangements are made. In essence, it is a way to say: “we’re still married – but not together”. 

Judicial Separation is useful as it enables the court to make orders about the division of a couple’s money and property, without actually terminating the marriage. 

Importantly, judicial separation does not prevent divorce proceedings from being filed in the future or, indeed, being filed by the other party during judicial separation proceedings if their preference is divorce. Of course, if either party wished to remarry then a divorce would be required. 

For couples who are not ready to divorce but would benefit from formalising their financial arrangements, judicial separation can offer an effective and practical solution. 

Commencing judicial separation proceedings allows a person to make an application to the court in relation to financial matters. The court can either approve a financial agreement reached between the parties (known as a consent order) or, if agreement cannot be reached, one party may make an application for financial remedy. If an application is made, the court will assist the parties in determining a fair division of the available resources. 

Whether in divorce or judicial separation proceedings, when considering financial matters, the court must broadly take into account: 

1. all of the circumstances of the case; and 
2. the statutory factors set out in section 25 of the Matrimonial Causes Act 1973

However, while the same principles apply to both divorce and judicial separation, there are some important differences. For example, there are some orders which a court can make in divorce proceedings but not in judicial separation proceedings, namely: 

a) pension sharing orders

These orders allow pension assets to be divided between spouses. This could be particularly relevant where one party has a significantly larger pension entitlement. Because judicial separation does not end the marriage, this type of order cannot be made. 

(b) clean break orders

A clean break order dismisses the claims which a couple have against one another by virtue of their marriage. Without a clean break order, the financial ties of the marriage remain. In practice, this means that either part can claim against the other’s assets at any point in the future. 

However, there are ways of mitigating this risk. Any financial order which is made as part of judicial separation proceedings can include a ‘recital’ which confirms the parties’ shared intention for there to be a clean break between them.

The legal implications of divorce proceedings and judicial separation in relation to finances upon death differ. 

A final divorce order revokes any provisions in a will that leave assets to a former spouse or appoints them as an executor. Any property left to a former spouse in a will would devolve as though your former spouse had predeceased you. 

In the case of judicial separation: 

• if a will leave assets to a spouse and no new will is made after judicial separation, the spouse would still benefit
• if a person dies without a will (intestate), the separated spouse would not inherit, as the estate would be treated as though the spouse had predeceased them
• the court can also dismiss claims under the Inheritance (Provision for Family and Dependants) Act 1975 in judicial separation proceedings

Judicial separation may also not have the same impact on pensions or insurance policies as divorce. For example, the right to a widow or widower’s pension under an occupational or personal pension scheme usually ends on divorce, but not necessarily on judicial separation.
Specific advice would need to be sought regarding the terms of pension rights and policies. 

Deciding between divorce and judicial separation is a deeply personal choice. Judicial separation could potentially provide structure and fairness where emotions may still be uncertain, allowing parties to manage financial and practical matters while keeping their marriage legally intact.
There is no ‘right’ or ‘wrong’ decision – what matters is that you understand the legal and financial implications of each route and make an informed choice that feels right for your circumstances.