Judicial Separation

A judicial separation is a process in which an individual seeks an order from the court to issue an order of separation to allow the married couple to stay separately from each other while still being married to each other. This means, essentially, that the couple remains legally married to each other but need not stay under the same roof with each other as a family unit.

Section 64 of the Law Reform (Marriage and Divorce Act) Act 1976 (“LRA”) provides any individual to present a petition of judicial separation against their spouse in court. The grounds of the breakdown of the marriage that they could rely upon are as the same as the grounds laid down in S.54(1) of the LRA for a divorce petition.

In the similar footing, a person seeking to apply for judicial separation also seek reliefs on the children’s custody, care and control, spousal maintenance and division of matrimonial assets similar to that of in a divorce proceeding.

However, unlike a divorce, a judicial separation will not grant an end to the marriage as it only allows the married couple to stay separately from each other. In cases where a judicial separation order is granted by the court, the couple subject to the said order cannot remarry other individual unless they proceed to divorce.

Further, when a couple is legally separated under an order of judicial separation, in the event of death of the wife and in the absence of a will, the property of the wife shall pass intestate as it would if the husband passed away instead.

An application of judicial separation does not operate as a bar for any individual to commence proceedings against their spouse either. In fact, having obtained an order for judicial separation prior to commencing a divorce proceedings will serve to amplify the said divorce proceedings the couple had already separated and the individual concerned may cite the same grounds as relied upon on the judicial separation proceedings in the divorce proceedings that they wish to apply.