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There could be situations where married couples can no longer stand to be together but do not intend to divorce in the immediate future, yet would like to have the option of formalising arrangements legally to avoid any dispute later on if things were to turn ugly.

Similarly, if one spouse is uncertain whether the marriage has completely broken down or perhaps a divorce is not an alternative due to strong religious beliefs or other reasons, the parties may petition for judicial separation.

A petition for judicial separation may be presented to the Court by either party to a marriage on the same grounds that the marriage has irretrievably broken down and the same circumstances as set out in Section 54 Law Reform (Marriage and Divorce) Act 1976, with the necessary modifications.

The Court shall take into account one or more of the facts provided in Section 54 of the LRA, namely:

(a) the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b) the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c) the respondent has deserted the petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition;

(d) the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition.

A petition for judicial separation, unlike divorce, may be applied for during the first two years of marriage.

The order for judicial separation means that the parties may live separately even though the marriage is still subsisting. Neither spouse can be held in desertion while the order is in force. Therefore, both parties to a marriage may legally separate, however, the parties are not allowed to marry anyone else unless and until they obtain a decree of divorce.

A decree of judicial separation will include provisions for the following, among others:

  • Which spouse remains in the matrimonial home;
  • Child custody and care;
  • Division of assets; and
  • Financial relief

As stated above, judicial separation unlike divorce, does not bring about a termination of the marriage and the parties will remain married to one another. Subsequently, the parties may apply for divorce. However, if the separated parties wish to cohabit and reconcile, an application can be made to Court to set aside the decree of judicial separation.

If you are uncertain as to whether your marriage has completely broken down, judicial separation may be a viable alternative.


Have a question? Feel free to contact us.


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