Living Separately as an Alternative to a Divorce

Divorce is not your only option. For example, judicial separation is an alternative form of marital separation.

Under a judicial separation, you will still be married. It is unusual, but sometimes used, for example for religious reasons, by people who are opposed to divorce. It can also be used during the first year of marriage during which time you are not entitled to be divorced.

PROCEDURE OF JUDICIAL SEPARATION

The form you will need to complete to apply for a judicial separation is Form D8:
http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=1115

In order to obtain a judicial separation, the person starting the process (the petitioner) will need to establish one or more of the following five facts:

  1. the respondent (the other spouse) has committed adultery. There is no need to name the other person;

  2. the respondent has behaved unreasonably. The "behaviour" in this case need not be serious, but it cannot be trivial;

  3. the respondent has deserted the petitioner for two years or more (this is very rarely used);

  4. the couple have separated and have been living apart for two years, and the other spouse agrees to the divorce;

  5. the petitioner has lived apart from the respondent for five years or more. In this case, no consent is needed from the respondent.

The cost of issuing an application for judicial separation is currently £365. You will need to send three copies of the completed Form D8 to your nearest divorce court.

To find your nearest divorce court: https://courttribunalfinder.service.gov.uk/search/aol

You need to include a certified copy of your marriage or civil partnership certificate when you send the form. You will need your original marriage certificate. If you do not have this, you can obtain a certified copy from the General Register Office: http://www.gro.gov.uk/gro/content/certificates/

There is a charge of £9.25 (as at June 2017).

If you were married abroad you will need your original marriage certificate or a certified copy and you will need to provide a translation, which is certified by a notary. To find a notary: https://www.thenotariessociety.org.uk/

FINANCIAL CONSEQUENCES OF JUDICIAL SEPARATION

What financial orders can you ask the court to issue upon ruling on judicial separation? The court can make financial orders on judicial separation. These can include:

  • Orders for maintenance;

  • Orders for a lump sum;

  • and orders transferring property.

It is not possible to get a pension sharing order on judicial separation (although you can if you divorce).

Importantly, the court cannot dismiss all your claims against one another resulting from the marriage, because you are still married. It is therefore possible that further claims could be made on a later divorce.

If you were to die following a decree of judicial separation, and you do not have a will, then your property will pass according to the intestacy rules (that is it will pass to your closest living relative according to the law), but your former partner will be omitted (even though you are still technically married). However, if your will leaves your former partner property, then they will inherit (unlike the position if you were divorced).

Please note that as you cannot begin the divorce process within the first year of marriage, if you separate during this time you will not be able to issue a divorce Petition until a year has passed from the date of your marriage, but you may have other options, in particular, you can apply for a formal legal separation, called a judicial separation.

USE OF FAMILY HOME

Before you make a decision whether you should move out of the family home, you will need to consider the following:

  • Whether you or your partner have somewhere else to go, what might be best for your children and your safety. If you are in an abusive relationship you can obtain an occupation order, which could exclude your partner from the home;

  • What would you like to happen to the home in the future - moving out will not stop you from having the home as part of your divorce settlement. However, it may make things more difficult as it could make it harder to prove that you need that property going forward.

An occupation order manages who can live in the family home.

In ordinary circumstances, both of you have the right to remain living in the matrimonial home until your financial claims against one another are resolved. However, in certain circumstances, one of the parties can apply for an Occupation Order. If the order is granted the court can:

  • Exclude one party from the family home, even if they are a joint owner.
  • Regulate the occupation of the home by either or both the parties, which means it can set times when you or your spouse (or both of you) can use the property and limit which parts of the home they can use.

  • Exclude a party from the entire home and an area around it. For example, the non-resident ex-partner is not allowed within 100 metres of the property.

  • For an application to be successful it must be against a respondent who is an ‘associated person’. Associated persons are:

  • Someone to whom you are or have been married

  • Someone with whom you have or have had a civil partnership

  • Someone you have lived with as though you were married

  • Someone to whom you are or have been engaged (if the engagement has been terminated, the application must be within three years of the termination)

  • Someone who has lived in the same household as you, except an employee, tenant, lodger or boarder

  • Certain relations

  • Someone with whom you have had a personal intimate relationship for a significant amount of time

  • Someone who is the other parent of your child or who has parental responsibility for your child.

The first thing you’ll need to do is fill in the application form. You can see a copy and download the form here: https://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=1117

The form asks for your:

  • Your name, address and date of birth. If you do not wish to reveal any contact details, complete Form C8: https://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=2216

  • The name and address of the person you are seeking the order against, the ‘respondent’.

  • If there are already family proceedings involving you and the other person, the name of the court and the case numbers, if known, and the type of case (for example, an application for residence of a child).

  • If there are criminal proceedings and the other person was arrested and charged, the name of the criminal court and case number if known, and the date of the hearing or trial.

  • If you are applying for an occupation order, in which you are asking the court to consider changing a rental or mortgage agreement, a copy of the agreement may help the court.

You’ll also need to write out a ‘witness statement’ and attach it to the form. This is your chance to explain what has happened and why you need the occupation order. Sign and date your witness statement and write ‘I believe that the facts stated in this witness statement are true’ at the bottom.

Send 3 copies of your application with copies of your witness statement attached to your nearest court.

You can find your local court at https://courttribunalfinder.service.gov.uk/search/

They will arrange for a copy to be sent to your ex-partner. They will ask them to write their own witness statement.

The court will get in touch with a date for the court hearing. If you’re worried about being in court with your ex-partner, you can ask to have the hearing in separate rooms.

The court applies two tests to decide whether to grant the order:

  1. The balance of harm test – the court must make an order if it appears that the applicant or any relevant child is likely to suffer significant harm at the hand of the respondent if an order is not made.

    There are however exceptions to this test. If it appears that the respondent or any relevant child is likely to suffer significant harm if the order is made; or the harm likely to be suffered by them is as great as, or greater than, the harm likely to be suffered by the applicant or child if the order is not made.

    In cases where it can be established that there is a significant risk to a child, the interests of the child will be the court’s main consideration.

  2. The core criteria test – the court can grant an occupation order having considered circumstances such as the below:
    1. the housing needs and resources of each of the parties and of any relevant child;
    2. the financial resources of each of the parties;
    3. the likely effect of any order, or of any decision by the court not to grant the order on the health, safety or well-being of the parties and of any relevant child; and
    4. the conduct of the parties in relation to each other and otherwise.

You can apply for an emergency order to be made. In section 3 of the form there is a box you can tick to flag the order as an emergency. If you ask for an emergency order you will need to explain in your witness statement that your ex-partner is likely to:

  • deliberately avoid or ignore the occupation order
  • physically harm you or your children; or
  • stop you from applying if you wait longer.

Your hearing will be held at your nearest family court. At the end of the hearing, the court will either decide:

  • that your ex-partner must promise to do or not do something - for example let you stay in the home

  • that they need more information – you might get a short-term order to protect you until you provide this information

  • to issue an occupation order.

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