DIY Judicial Separation

A judicial separation in many ways is similar to divorce, but it does not permit either spouse to remarry. A judicial separation under the Family Law Reform Act 1989 gives the spouses the right to live apart and typically addresses all the matters which arise when a marriage breaks down. In practice, that main reason for a judicial separation is to address these issues. Issues that may be addressed include the transfer of property, the family home, provision for children and inheritance rights. It it important to note that after a judicial separation, the spouses remain husband and wife. A Decree of Judicial Separation does not force the spouses to separate and an ancillary order would be required to exclude one of the spouses from the family home.

Like divorce, anyone considering a judicial separation should first be advised about the possibility of reconciliation and be provided the contact details of marriage counselors qualified to help effect this. If there is no prospect of reconciliation, they must be informed about the other alternatives to judicial separation available, such a Deed of Separation and mediation. If solicitors are consulted, they will discuss these alternatives with the spouses. We recommend that you read our section on Divorce Alternatives for more information.

The grounds for Judicial Separation are not the same as divorce and there is no compulsion to be four years separated, as in divorce.

The Family Law Reform Act 1989 allows a decree of judicial separation on any one of the following grounds:

  • Adultery
  • Unreasonable behaviour
  • Desertion for one year or more
  • Separation for one year or more, with consent
  • Separation for three years or more, without consent
  • Absence of a normal marital relationship for one year or more

Adultery

Consensual sexual relations with a third party is considered adultery, though a proper definition is not described in the Act. A spouse may not rely on adultery as a ground for a Decree of Judicial Separation, if the spouses remain living together for a year after the adultery becomes known.

Unreasonable behaviour

The Act describes “that the respondent (the spouse of the individual applying) has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent”. For this ground, the applicant must show that as a result of the respondent's behaviour, it is not reasonable for the spouses to live together. Unreasonable behaviour may be physical abuse, mental abuse, abusive language, violence, threatening behaviour or many other forms of antisocial conduct. There is no minimum period for which this behaviour should exist and an application may be made immediately to the court.

Desertion for one year or more

This ground requires the willful abandonment of one spouse by the other without consent and in breach of his/her obligations. It is required under this ground that a spouse be deserted for at least one year prior to the application being made.

Separation for one year or more, with consent

This ground requires that the spouses have been separated for a continuous period of at least one year prior to the application being made and that both parties consent to the granting of a decree of judicial separation.

Separation for three years or more, without consent

This ground requires that the spouses have been separated for a continuous period of at least three years prior to the application being made, but it does not require applicant's spouse to consent to the granting of a decree of judicial separation.

Absence of a normal marital relationship for one year or more

The final, and probably the most common, ground for judicial separation states that “the marriage has broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application”. The Act does not define what a normal marital relationship is, however. Our experience shows that the court will require evidence that the spouses' circumstances and interrelationship differs so obviously from a reasonably normal marital relationship that it is clear that the marriage has broken down. This ground requires that this situation has existed for at least one year prior to the application being made.

The court may refuse to grant a decree of judicial separation if it is not satisfied that that the welfare of any dependent children has been provided for. In granting the decree, the court my make ancillary orders which may provide for the welfare of any children. In making such orders, the court will have regard to the financial resources of both spouses.

A decree of judicial separation is not final and should both parties wish to reconcile or have already reconciled, the court may rescind the decree if they both consent.

To apply, please click through to Apply for Judicial Separation Online