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Judicial separation - overview
The Family Procedure Rules 2010 have introduced a change in the terminology in judicial separation proceedings. There are however some inconsistencies between the terminology used in the rules, which use the new terms, and those referred to in the forms which refer to old terms . Judicial separation proceedings are referred to as matrimonial proceedings. Proceedings for judicial separation or a matrimonial order must be begun by an application for a matrimonial order, still referred to as a petition.
Grounds for judicial separation
Proceedings for judicial separation will generally be started where one of the parties to the marriage has religious objections to obtaining a divorce or where the parties have not been married for one year. Such petition does not dissolve the marriage but a party may wish the court to exercise its powers in relation to financial matters.
A petition for judicial separation may be presented relying on any one of the five facts contained in the Matrimonial Causes Act 1973 (MCA 1973), namely:
the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent
the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent
the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition
the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted
the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition
The court does not have to consider if the marriage has broken down irretrievably and any such statement must be deleted from the petition. There is only one decree, a decree of judicial separation.
Procedure for judicial separation
The cause must be commenced by a n application for a matrimonial order (a petition) containing the information prescribed in the Family Procedure Rules 2010 (FPR 2010). When drafting a petition, ensure that the date and place of marriage correspond exactly with the information on the marriage certificate.
When filing a petition, consideration should be given to whether there are issues of competing jurisdictions.
Proceedings may be commenced in any divorce county court or the Principal Registry. The petition should be filed with sufficient copies for each party, together with: the marriage certificate; notice of acting where appropriate; certificate with regard to reconciliation; statement of arrangements for children; and the court fee.
If there are any minor children of the family under the age of 16, or over that age and receiving instructions at an educational establishment or undergoing training for a trade or profession, the petitioner must file a written statement signed by the petitioner personally and agreed, if practicable, by the respondent containing the information required by the FPR 2010. Where the arrangements are not agreed, the respondent may send to the court a written statement with a response to the petitioner's proposals.
Specific rules apply when amending a petition and the court's permission may be required.
The procedure for defended and undefended causes is broadly similar to that for a divorce, except that the decree pronounced is final. Certain provisions of MCA 1973 that apply to divorce do not apply to petitions for judicial separation, eg the defence of grave financial hardship.
For the procedure, see Divorce.
A decree of judicial separation relieves both parties from the obligation to live together. An application for a financial settlement may be made in the same way as upon divorce, except that there are restrictions on orders that can be made. For example the court has no power to make a pension share order.
A petition for judicial separation can be amended to one of dissolution on the same facts, provided the one year rule that applies to the issue of a divorce petition is not infringed.
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