Judicial and Legal Separation

8.25.6 Updated on:

Separating informally

A married couple can choose to separate by themselves. 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 Court. 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 to make arrangements for children, but that may only be given if certain reasons exist.

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. Where an agreement has arrangements about money that might affect income tax, it is better that advice is taken first. What you put in the agreement is up to you but it is sensible to get legal advice.

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. 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.

If parties cannot agree

A mediation service such as Family Mediation Jersey or Family Foundation may be able to help parties reach an agreement without having to use lawyers or court.

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.

Judicial separation

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. This is the only way, other than by divorce or annulment, that 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 Family Division of the Judicial Greffe, 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. 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.

If you get an order for a judicial separation, it does not mean you cannot get a divorce later. 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 same process should be followed as with Divorce.

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. 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. It may be difficult to prove that a separation has actually taken place and 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.

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 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 Parental Responsibility, and Child Maintenance.

Where there is a dispute over who owns what or who owes money, you should get legal advice to prove what belongs to you and who is liable for any debts.