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Divorce is not always the solution when a marriage is on the rocks. This is especially so where one spouse is not convinced that the marriage has completely and irreparably broken down. Divorce may also not be a suitable alternative if one or both of the spouses have strong religious beliefs against divorce. In such a situation where divorce is not an appropriate course of action, the parties may petition for judicial separation instead.

What is Judicial Separation?

A petition for judicial separation may be presented to the court by either spouse.Unlike a divorce petition, a petition for judicial separation can be lodged 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 will be considered to have deserted the other while the order is in force.  Therefore, both parties to a marriage may legally separate; however, they cannot marry anyone else until and unless they obtain a decree of divorce. Parties can still apply to be legally divorced after obtaining a decree of judicial separation.

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

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

The circumstances in which a spouse may apply for judicial separation is the same as those for divorce under Section 54 Law Reform (Marriage and Divorce) Act 1976, with the necessary modifications. What this means is that in considering whether to grant a petition for judicial separation, the court may take into account one or more of the following factors:

  • one spouse has committed adultery which makes it intolerable for the other spouse to live with them;
  • one spouse has behaved in such a way that the petitioning spouse cannot reasonably be expected to live with them;
  • one spouse has deserted the petitioning spouse for a continuous period of at least 2 yearas immediatley preceding the presentation of the petition;
  • both spouses have lived apart for a continuous period of at least 2 years immediately preceding the application for judicial separation

If the separated parties reconcile and wish to cohabitate again, an application can be made to Court to set aside the decree of judicial separation.

Given the finality of divorce and the legal implications, if there is still some uncertainty about whether the marriage is unsalvageable, a judicial separation may be a better option.


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