Judicial separation or divorce?

[thetimehascomesaidthewalrus]

Has anyone made the choice of judicial separation (JS) over divorce and then regretted it later for financial reasons?

I am currently having to make this choice, having decided that my 20 year marriage is as dead as a dodo; I've already moved out (it became just too impossible and abusive). I am consulting a solicitor for advice, but it can be hard to read through all the legal jargon and get a good grasp of how the reality of a judicial separation might pan out in practice. It is apparently a much less popular option than divorce and there must be some good reasons for this.

We don't have any other parties involved, no infidelities and currently neither wish to remarry. (He is very religious and doesn't want any kind of separation, but for me living together is intolerable and now actually feels too unsafe). I think I understand that JS is just like a divorce, other than that no Pension sharing order can be made: so assets would be split but he'd keep his pension, I'd keep mine - or so I gather.

The reason this might suit me better than divorce - (and apologies if this makes me sound horribly mercenary but I do need to understand the full implications of whichever option I choose) - is that DH has a very wealthy mother (who is currently as fit as a flea) and he is likely to be her sole heir. If we had a JS, then when she one day passes on, and he then inherits, and I only THEN go ahead with a divorce - Q: Will I then be in a much stronger financial position in that I will then be eligible for a share of his inheritance? Whereas, if we simply divorce, (I think) I'd get my share of the equity and of his pension, but presumably zero rights to any future share in his much more valuable inheritance, as and when he gets that? So, while divorce would give an earlier, cleaner' final' break, it might be worth hanging on, albeit initially with less, via the JS route (ie no pension sharing order) - but with the prospect of a great deal more later on? Or is there some legal mechanism whereby I would still be prevented later on from having any claim in his future inheritance falling within a judicial separation, even if I wanted this then to evolve into divorce?

So sorry if I'm not making myself clear - it seems to be a legal minefield and my solicitor's replies to these questions just aren't clear enough to me yet. Thank you to anyone who has faced the same dilemma or has any experience/knowledge of this specific issue.

Well I really don't think you should be entitled to any of his mother's money if you have decided that you wish to end your relationship then do that. Once you have been separated any money received after this is generally not considered a marital asset, especially an inheritance. If his Mum wanted to leave you money she would name you in her will, presumably she hasn't done that. You are correct you sound very mercenary especially give your MIL is still alive and well.

You have already separated from your husband. Any inheritance he receives before you divorce will have to be declared, but the courts will treat it as his and will only award you some of it if there is no other way of meeting your reasonable needs. You have almost certainly already lost any chance of getting a share of his inheritance. Messing around with judicial separation won't help.

Thank you for these comments - any are appreciated. I am trying to get the best idea of where I stand legally, as my solicitor hasn't as yet helped me to clarify these points.

If anyone has experienced judicial separation, it would also be really helpful to me to hear about their experience. Thank you in advance for any input.

Will you tell him that's why you'd rather not divorce? In order to have no relationship with him, but still take his family money?

The reasons you might go for a judicial separation:

• You have been married less than 12 months so cannot divorce
• You have religious or moral objections to divorce
• You want to stop your husband remarrying but want other matrimonial matters resolved, e.g. maintenance (you will also be unable to remarry, of course)
• You want to preserve pension rights which you will lose on divorce, e.g. an entitlement to a widow's pension

Judicial separation is rarely a sensible way to go. Apart from anything else, now that we have no fault divorce, your husband can divorce you at any time and there is nothing you can do to prevent it. Similarly, your husband can't prevent you divorcing him, however much he objects to the idea.

Based on what you have posted, the only reason I can see why you might go for judicial separation would be to pander to his objections to divorce. If that isn't an issue for you, you should divorce.

Apologies for the delay in my reply but I'm very grateful for all the comments that have been posted.

Looking back on my original post, no, I certainly haven't done myself any favours in the way I phrased my original post. So yes, I get why I have been flamed here - I do come across as terribly money-grabbing and mercenary.

I'm not. I am prepared to go away with the minimal necessary for my needs (we aren't rich) so long as I have my freedom and can feel safe. But I am just curious as to what my legal rights might actually be in either scenario, even if I do end up choosing the option which leaves me worse off, if this is ultimately the best one for me personally. (This is actually most likely). Is it necessarily so bad to find out what one may potentially be renouncing before it gets renounced?

It's a very long marriage that I'm leaving (over the years kicked, punched, shoved, threatened, coercively controlled/my possessions/ items in the home smashed etc). I stayed in it through thick and thin only to support disabled DC, as I wasn't financially in a position to leave, didn't know how to, and was guilted into staying, for religious reasons, for way too long. Abusive and narcissistic STBX is most concerned about public appearances, is a diligent church goer, won't discuss even the idea of either JS or divorce, I am to blame for it all etc etc - so whatever gets decided will have to be my decision, mine alone. He will fight it every step of the way. Thanks to new no-fault divorce I am so grateful that I am now able to do this; there is no other way to escape as he will never voluntarily release me. It will still be a financial struggle for me to live post-divorce, but I may not have to go on living on benefits as I am currently. I will easily be able to cope with seeing him live with plenty in years to come. Poverty isn't pleasant but no question that it is preferable to returning to live in the prison my marriage became.

'Pander' is a good word. I also entered into my faith marriage believing it would be forever. I'm simply trying to understand the big picture of each scenario, ISWIM.

prh47bridge you sound very knowledgeable and I wonder if you are legally trained. Thank you.

@prh47bridge is a lawyer.

Thank you for that, it is reassuring, prh47bridge sounds very authoritative - their comments are much appreciated.

If anyone else has personal experience of judicial separation (indeed from either side of the solicitor's desk) I would be very interested to hear what aspects of this have worked out well, or otherwise, for the client.

Sometimes one only finds out how things pan out in reality after the event; and - unless one is a lawyer - legal jargon can be very bewildering.

@prh47bridge my friend had a judicial separation from his wife about 20 years ago. They live separately and each own their own places. He said he'd been told (no idea by whom) that the JS no longer exists and they are technically still married. Neither intend to do anything about it but I wondered whether it could lead to problems. Each has written a will and wants the other to inherit their work pensions (teaching, uni admin). Do you know anything about this? Thanks.

The judicial separation does still exist, but they are still married and always have been. Judicial separation does not end a marriage.

What happens to a pension when you die is governed by the rules of the pension scheme, not your will. As they are still married, the pension schemes will treat them as husband and wife. They need to check what happens with their pension providers.

Thanks very much, I'll pass that on.

OP Judicial Separation has fallen out of favour (was never popular IME) since pension splitting has been possible. I think the main issue here is that your solicitor is not communicating with you in a way that meets your needs. I'd suggest going back to them and asking for a clear breakdown of the pros/cons of divorce/JS in your specific circumstances. While many on MN are qualified and provide excellent assistance you have a professional relationship with your solicitor (and most importantly benefit from their professional indemnity insurance!) It's possible that your solicitor has no clue about JS and is busking their way through it, hence not providing clear advice. If you fear that may be the case I'd suggest escalating your concern within the firm (if they are junior) as none of the partners will want to risk a claim. Alternatively might want to go elsewhere?

As @prh47bridge and @JennyMule said, a JS doesn't dissolve a marriage; it simply records formally that you are separated.

As an ex family lawyer (and I also worked in the court service for a few years), JS even in the olden days when I was practicing this area were very rare; I only made them either when the couple were within the first year of marriage and for whatever reason were determined to do something (rather pointlessly), or were Roman Catholics or something.

From what you've put in your OP, there is really no reason at all to do a JS; you have to go through almost the same process again, and will still have to do a consent order following the terms of the separation agreement, but with a pensions sharing order slotted in too.

@ JennyMule and @Mumblechum0, your comments are very helpful and continue to build for me an overall picture that JS may not be the best way to go.

You are absolutely right that it is my solicitor who ought to be advising me here, but so far they have only given me some secondhand (ie. forwarded) information (in very obscure legal language) and then have not responded to my further emailed questions on JS, Their secretary finally got back to me today, to say solicitor is away till next week, so I suppose I'll have to wait a bit longer - but, tbh, the responses I have had on here already feel more direct, useful and realistic!

I have already spent quite a bit on this solicitor, but am beginning to think that maybe I should look elsewhere. This is such an important personal decision /life change for me, so surely I need to be well advised and shouldn't still be feeling this confused....? The law is going to be the same everywhere, obviously, so I suppose any solicitor would have to follow the same procedures - once I know what I need. It is causing me some concern that I have been struggling this long to understand all the ramifications of each scenario. It raises the question of how important is the relationship with the solicitor who one chooses. Apparently it is possible to get a DIY divorce online much more cheaply; but I went to the expense of going to a solicitor precisely for their assumed expertise in interpreting the complexities, assessing my situation and their ability to advise me as to the best course of action. The last thing I want is to find out later that I should have chosen the other option.

Well frankly your solicitor should simply have told you not to waste time and money faffing with a JS and to crack on with a divorce (for the reasons set out by @prh47bridge .

it should have been a 5 minute job to explain that at the first meeting tbh

Yes I completely agree.

Believe it or not I am still waiting for a response to an (urgent) email sent over a week ago, despite having reminded his secretary last week that I needed some more answers and would appreciate a meeting or at least a phone call. I've already paid £100s - for what seems to me to be very little, so far.

Does this seem like a red flag already and should I leave and look for a better solicitor? I don't need any more stress in an already stressful situation!

I am thinking of going for a JS . Mainly because I want the marriage to be recognised as over. But neither of us are currently in a position to split the assets which is why . I believe that any inheritance after separation is not considered a marital asset . This suits me as both of us are due to inherit and mine may be slightly bigger .
I am going to solicitor next week to clarify all this.
You really can not count on your Ex inheriting anything though. What if it all disappears on providing care for his parents ?

Judicial separation does not recognise the marriage as over. After judicial separation you are still very much married. Its main purpose is to allow you to split the assets without ending the marriage - the opposite of what you are trying to achieve.

You can divorce without getting a financial order, leaving that until later. It is not recommended but it is possible.

Thanks good to know. Guess I just wanted some official recognition that whilst married, the relationship is over. Also need to stay married for mortgage , etc. Too old to get a new one and not enough equity to split comfortably. 😤