Judicial and legal separation
Updated 20 December 2018
Words you may need to know
Separate – live apart
Injunction – this is a court order to usually stop someone doing something
Litigant in person – some people try to manage their own legal cases without involving a lawyer. They are called litigants in person.
Mc Kenzie Friend - this is someone you can take to court who sits with you to support , take notes or give advice
Judicial separation - this is a legal separation
A married couple can choose to separate by themselves. There is no need legally to tell anyone that they are no longer living together (although see who to inform about the separation). If one partner decides to leave against the wishes of the other, they are free to do so although some things still apply, for example, the duty to provide for a child. Leaving in this way is legally called 'desertion'. After two years the person left behind can sue for divorce. If the couple can agree, they can make plans for children, money, housing and other property without having to go to the Courts. However, any unofficial arrangement made when separating may affect future outcomes if the couple ever go to Court. It is also possible for a Court to change an agreement made by the couple if, for example, it thinks it might be unreasonable or in the case of a child, to be against that child's best interest. There is also the danger of one person being forced by the other into an agreement that they don't want.
Even if the couple do not wish to end their marriage, they may decide to get a Separation and Maintenance Order from the Magistrate's Court to make arrangements for the child/ren, but that may only be given if certain reasons exist.
For more information, see 8.27.10.L1 Maintenance and Separation
Separating with a separation agreement
A separation agreement is usually made between married couples but any couple can draw up an agreement as a way of deciding and proving the plans they have agreed.
A separation agreement is a written statement between the couple setting out how they wish to resolve the issues of money, property and children. The benefit of a written agreement is that it is easier to prove that both partners understood what has been agreed to. Where an agreement has arrangements about money that might affect income tax, it is better that advice is taken first - see 8.27.10.L1 para 8, or speak to the Tax enquiry desk at Customer and Local Services. What you put in the agreement is up to you but it is sensible to get legal advice if possible. The following are some examples which might be put in a separation agreement:
- an agreement not to live together. This frees both partners from the duty to share a home which is a part of the marriage contract. If one of a married couple does not agree or want the separation it should not be put in as it will stop any future right to sue for desertion in divorce proceedings.
- an agreement not to bother, annoy or disturb the other partner. This can be made to happen by injunction, if necessary, should there be the threat of physical harm. An injunction is a court order.
- an agreement to provide maintenance for the other partner, usually the woman. Maintenance is money that is given by one person to the other for their living expenses. This clause could say that any maintenance payment made may be reduced if the woman lives with another man. A wife not seeking maintenance for herself should still claim a nominal amount, e.g. £1 per year so as not to lose her rights. On the advice of a lawyer the wife may decide to give up her claim for maintenance.
- an agreement for both parties to 'live their own lives' freeing them to enter into sexual relationships with others without the risk of later claims of adultery - See new relationships during separation.
- an agreement to provide maintenance for children. Any agreement which says that no order will be made to Court will not be upheld as that might be necessary in the future. Where maintenance is not needed by the partner with whom the children live, the agreement should still ask for a payment of a small sum which can be increased if their financial situation changes.
- arrangements for who the children should live with and have contact with. These arrangements will not be enforced by a Court if they are not thought to be in the best interests of the children. It is helpful for the agreement to give both parents joint parental responsibility and care. Who will have the children and when should be clearly stated to avoid any misunderstandings.
- an agreement that neither party will make a claim against anything the other person owns that has been specially mentioned in the terms of a will.
It is always best to talk to a lawyer when drawing up an agreement, but the couple should work out first what they want to cover and what arrangements they want to make. This will reduce the legal costs. Legal Aid may be available, subject to the usual conditions. Most lawyers will advise each partner to have their own lawyer because the agreement may give one partner more control than the other partner. Divorce procedures that might happen in the future are likely to be easier if the signatures on a separation agreement have been witnessed by a solicitor or advocate.
New relationships during separation
It is important to remember that even though you are separated, you are still married and can still strictly commit adultery or cruelty. Even though a couple may plan to divorce on grounds of separation, committing adultery during separation could allow one party to ask for a divorce on that ground; which could be more stressful. One way to avoid this happening is for both parties to include in their separation agreement a clause freeing them from being faithful. This would be a good defence against any later claim of adultery. Adultery is unlikely to affect any financial settlement on divorce.
A judicial separation is a Court Order which frees the partners of a marriage from the need to live together, in the same way as divorce. It is quite rare but is usually used by couples who object to divorce on moral or religious grounds. The order does not end the marriage so neither partner is free to remarry. Once the order is made, the Court can then deal with matters relating to property, money and children which need to be decided. This is the only way, other than by divorce or it being declared null (which means it did not legally happen), which allows the Court to make an order for the transfer of property.
This is sometimes used as a first step towards divorce where the parties have not been married for three years.
You can get an order for a judicial separation from the Divorce Court, with legal help. You can apply for it at any time after the marriage. You do not have to have lived apart and there is no bar for the first three years of marriage as there is for divorce. Either partner can apply for an order for judicial separation on any of the grounds which also relate to divorce. Also, there is the ground of 'being habitually drunk'. That means “drunk most of the time"!
If you get an order for a judicial separation that does not mean you cannot get a divorce later, (after the three years of marriage). The reasons you used to get the order in the beginning can be used for the divorce and you do not have to prove them again.
Either partner can apply for an order for the judicial separation to be cancelled as long as both partners agree.
Who to inform about the separation
- The wife should notify Customer and Local Services as this could affect Income Support, if they are receiving it, and also pension rights. The wife does not have to pay her own contributions until divorced, but that should be considered in order to gain benefits in future (these include Incapacity Allowance and Pension).
- Customer and Local Services will assess the wife's income separately after separation so they need to be told. If tax relief is to be claimed on maintenance payments then the Maintenance order or the voluntary agreement must be approved. See 8.27.10.L1 Maintenance and Separation.
- Banks and investment / mortgage companies should be told and joint accounts separated
- You may wish to rethink writing your will so should discuss this with a lawyer
- Where there may be housing problems, e.g. if one or other partner has no housing entitlement, it may be helpful to contact the Housing Department/ Population Office or take legal advice.
- There may be life insurance policies that have to be changed
Deciding to separate but live in the same home
Some couples may wish to end their relationship but are not able to live in separate homes because they can't afford to or because there is no-where else to stay. It is possible to live as separate households within the same house and no longer do anything for each other such as cooking or cleaning. This can be a way of having some freedom from each other while carrying on sharing child care tasks. However, it may be difficult to prove that a separation has actually taken place. This will affect your ability to claim benefits alone, for example, Income Support. It may also be difficult to prove the separation as grounds for divorce. Making a separation agreement might be a useful way of overcoming these problems - see above.
Cohabiting parties separating
Cohabiting means two or more people living together. Two people living together as man and wife are sometimes thought to be common law married but this does not apply in Jersey
There is no recognition in Jersey law of cohabiting, so no there is no process for making orders or agreements when they decide to live apart. Where there are children involved, however, you may need to get a Court Order for residence, access, or maintenance see 8.30.40 Parental Responsibility, Residence order / contact / access, and 8.27.10.L3 Unmarried parents and maintenance.
Where there is a dispute over who owns what or who owes money, you should get legal advice to prove what belongs to whom and who is liable for any debts.
Separation before staring Divorce Proceedings - Litigant in Person
A Litigant in person is someone who is managing their own divorce or case without using lawyers.
You don't have to have proof of the date of separation when applying for a divorce, (whether with legal help or when a litigant in person'), as you will need to swear affidavits that the facts contained in the papers are true. An Affidavit is where you swear an oath that something is true.
Information on taking a 'McKenzie Friend' into court is available here