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Judicial separation - An alternative to divorce?

It seems hard to believe but a woman recently tried to sue her lawyers for failing to advise her that divorce would end her marriage. A woman called Jane Mulcahy sued for professional negligence. Her claims, against two firms of solicitors, were unsurprisingly thrown out by the Judge.

However a serious point did emerge from the case in respect of whether Mrs Mulcahy’s solicitors, knowing that she was Roman Catholic, should have advised her about the possibility of judicial separation as an alternative to divorce.

A decree of judicial separation does not dissolve a marriage but releases the parties from the obligation to live together. Whilst most separating couples favour the finality of divorce there are some individuals for whom judicial separation may be an appropriate option.

Divorce can only be sought after a year of marriage, however,judicial separation, for which there are no time constraints, can be an alternative for those separating within the first year of marriage.

It can also be a solution for those who wish to split from their spouse but who have religious or moral objections to divorce.

An application for judicial separation is made in much the same way as an application for divorce. An individual can apply using the same facts as in a divorce case, for example adultery, unreasonable behaviour or two years’ separation with the other party’s consent. The difference is that there is no need to show that the marriage has broken down irretrievably.