Judicial separation is a little-known (and little-used) provision in the Matrimonial Proceedings and Property Act. However, this order may be a viable alternative for persons who cannot be divorced for religious or other reasons. Want to see it for yourself? Here’s the legislation.
Effect of the Order
Judicial separation does not dissolve the marriage. However, it removes the cohabitation component in the marriage i.e. you do not have to live with your spouse. This means that the spouses can live separately without being accused of desertion. A spouse who applies for this order can also apply for maintenance and property adjustment. One of the most interesting consequences of this order occurs where one of the spouses dies without a will. If they are living separately at the time of death, the surviving spouse has no inheritance rights.
How is it different from a divorce?
The first and most important difference is that a judicial separation order does not bring the marriage to an end. The only way to permanently end the marriage is through a divorce. (You can read more about divorce here.)
Another difference is the need to show irretrievable breakdown of the marriage. This applies only for a divorce. This makes sense since only a divorce ends the marriage.
Third, you do not have to wait a year before applying for a judicial separation order. However, you must be married for at least one year to apply for a divorce – otherwise you require the court’s permission.
A divorce occurs in two parts – the decree nisi and then the decree absolute. Conversely, a judicial separation order takes effect immediately.
Finally, a judicial separation order can be rescinded and the marriage will resume. On the other hand, you cannot ‘rescind’ a divorce; you can get remarried.
Disclaimer: This article is intended for informational purposes only. It is not intended to be legal advice. If you have a legal issue, please consult a qualified attorney.