Q&As

Where judicial separation proceedings have been commenced, can the petitioner then seek a decree of divorce?

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Published on LexisPSL on 22/05/2018

The following Family Q&A provides comprehensive and up to date legal information covering:

  • Where judicial separation proceedings have been commenced, can the petitioner then seek a decree of divorce?

Where judicial separation proceedings have been commenced, can the petitioner then seek a decree of divorce?

A decree of judicial separation does not dissolve or end the marriage: it relieves the petitioner of the obligation to cohabit with the respondent.

A decree absolute puts an end to the status of marriage between the parties.

Where a decree of judicial separation has been obtained and one party then wishes to apply for a divorce, section 4 of the Matrimonial Causes Act 1973 (MCA 1973) provides that a person shall not be prevented from presenting a petition for divorce by reason only that the petitioner or respondent has at any time on the same facts or substantially the same facts as those proved in support of the petition been granted a decree of judicial separation. The court may treat the decree of judicial separation as sufficient proof of any fact by reference to which it was granted but must receive evidence from the petitioner (MCA 1973, s 4(1), (2)) and the court may treat a period of desertion immediately preceding the institution of the proceedings as immediately preceding the presentation of the divorce petition if the decree of judicial separation has been continuously in force and the parties have not resumed cohabitation (MCA 1973, s 4(3)).

If proceedings for a decree of

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