Judicial Separation

What a Judicial Separation Order Is

A judicial separation order, called a separation order for civil partners, is a court order providing for the separation of you and your spouse or civil partner. The GOV.UK guide to legal separation gives the usual reasons: religious objections to divorce, a relationship of less than a year, or wanting time to decide.

Since 6 April 2022 there is no fault to prove. Section 17 of the Matrimonial Causes Act 1973, as amended by the Divorce, Dissolution and Separation Act 2020, lets either or both parties apply, requires a statement that the applicant seeks to be judicially separated, and obliges the court to make the order. Section 56 of the Civil Partnership Act 2004 does the same for civil partners.

What it is not is a divorce: the marriage continues, so neither of you is free to marry anyone else. To end the relationship, see no-fault divorce, civil partnership dissolution and annulment.

The Legal Test and the Court's Jurisdiction

There is no ground to establish and no minimum length of relationship: the one year restriction in section 3 of the Matrimonial Causes Act 1973 applies to divorce applications, not to this one.

The court does need jurisdiction. Form D8S gives the usual basis as one or both parties being habitually resident in England and Wales, with further bases including domicile. Where one of you lives abroad, take advice first: the form recommends it.

GOV.UK says a joint application is for couples who both agree and are not at risk of domestic abuse, and a sole application for cases where the other party does not agree or may not respond. On a sole application the court sends the respondent a copy.

What the Order Changes and What It Does Not

The order divides nothing by itself. Its direct statutory effect is on intestacy: under section 18(2) of the Matrimonial Causes Act 1973, if either party dies intestate while the order is in force and the separation continues, that property devolves as if the other party had then been dead. Section 57 of the Civil Partnership Act 2004 says the same for a separation order.

A will is different: section 18A of the Wills Act 1837 operates where a court dissolves or annuls a marriage, not on judicial separation, so your will and any gift to your spouse stand until you change them. Our will writing service can deal with that.

It does open the court's financial powers. Sections 23 and 24 of the Matrimonial Causes Act 1973 allow periodical payments, lump sums and property adjustment orders on a judicial separation order, and paragraph 1 of Schedule 5 to the Civil Partnership Act 2004 does the same on a separation order. They run as separate financial remedy proceedings, or a consent order if you agree.

Two powers are missing, though the court is not shut out of pensions altogether. Section 24B and paragraph 15 of Schedule 5 allow pension sharing only on a divorce, dissolution or nullity order, so this order cannot share a pension: see pensions on divorce. The section 25A clean break duty does not arise either, so later claims stay open where a clean break order would close them. Where the court makes an order under section 23 having regard to a pension, section 25B of the Matrimonial Causes Act 1973 lets it require the pension provider to pay part of a benefit to the other party when it falls due, and paragraph 25 of Schedule 5 to the Civil Partnership Act 2004 does the same where the court makes a Part 1 order, so a pension can be attached on this order even though it cannot be shared.

Evidence and Common Problems

The paperwork is short but strict: form D8S, an original or certified copy of your marriage or civil partnership certificate, a certified translation where it is not in English, and the fee or a help with fees application. GOV.UK says to send three copies and keep your own.

Two things catch people out:

• a photocopied certificate: the form says photocopies will not be accepted, and applying without it needs a separate application on form D11 and another fee
• assuming the financial order question on the form starts financial proceedings: it says the court takes no action at that stage, and a separate Form A or Form A1 and fee are needed

Court fees change. The current amount is on the GOV.UK legal separation guide and in the fee list the GOV.UK court fees page links to, with help with court fees for low incomes. Our charges are on the family law fees page.

How the Judicial Separation Process Works

1. Complete form D8S alone or jointly, with the statement that you seek to be judicially separated and the reason the court has jurisdiction.
2. Post it with the certificate and the fee to the HMCTS Divorce and Dissolution service address on the form. This is a paper application, not an online one.
3. The court issues it and serves a copy on any respondent under rule 7.5. Under rule 7.7 the respondent files an acknowledgement of service within 14 days and may answer on form D8B within 21 days of the date that acknowledgement was due: see responding to an application.
4. Apply under rule 7.9(2) for the court to make the order: once the time for the acknowledgement of service has passed in an undisputed case and the time for an answer has passed in any other.
5. If satisfied of your entitlement, the court lists the application before a judge to make the order. There is one order, not a conditional order followed by a final one.

When Legal Advice Is Especially Important

Advice earns its keep where:

• a pension is the main asset, because this order can attach a pension but cannot share one, while divorce or dissolution can do both
• one of you lives outside England and Wales, or proceedings have started in another country
• you are weighing a court order against a separation agreement, which avoids a court application but gives you no order
• permission to stay in the UK depends on the relationship, covered on our spouse visa page

Where there is abuse, safety comes first: call 999 in immediate danger, and the National Domestic Abuse Helpline is 0808 2000 247. Protective orders such as non-molestation orders are handled separately.

How RakLAW Solicitors Can Help

We advise on judicial separation from 42 Shad Thames in Southwark, a short walk from Tower Bridge, and will say plainly where a divorce, an annulment or a written agreement would serve you better. Founded by solicitor Rakesh Prajapati, the firm covers divorce and separation work in England and Wales.

We prepare and file the application, deal with service and any answer, and sort out money and, where needed, child arrangements orders at the same time. RakLAW does not offer legal aid and our family work is privately funded. The first 15 minute consultation is free: call 0203 345 2000 or book an appointment.