Legal News

A woman has tried to sue her divorce solicitor because she alleges she was not advised that divorce would end her marriage.

Jane Mulcahy tried to sue her former divorce solicitors for professional negligence – alleging that they should have explained clearly to her that divorce would end her marriage.

Ms Mulcahy is a Roman Catholic – in the Roman Catholic faith divorce is not accepted. She says that her divorce lawyers should have taken into account her religious beliefs and recommended a judicial separation rather than divorce. A court has rejected the case, however.

What is judicial separation?

Judicial separation is one step away from divorce and enables estranged couples to live apart legally without getting divorced.

Like divorce, judicial separation has two decrees – a decree nisi and a decree absolute.

Couples receive a decree of judicial separation – but their marital obligations to each other cease and any will made during the marriage is negated.

The court can still make arrangements for the care and financial provision of any children of the marriage – and the couple still divide their property. A former spouse who has a judicial separation may still accrue some pension benefits from their former husband or wife if they die.

The advantage of judicial separation is that it can be applied for under a petition without having to prove the marriage has broken down irretrievably and without having to remain married for a minimum length of time.

The same grounds apply for judicial separation as for divorce, including adultery, unreasonable behaviour and desertion for two years.

Couples who have been married for less than one year are not allowed to divorce – but after three years, a couple judicially separated can apply to divorce if they wish to. If they decide they want to continue their marriage, the court reverses the judicial separation.

Judicial separation can be a useful alternative for couples who cannot divorce because of their faith – or who cannot prove to the court the marriage has broken down irretrievably, or who have been married for less than a year.

Some couples also begin the process of divorce and one party in the marriage – or both – may begin to have doubts once the proceedings begin.

Although judicial separation is not common, it can act as a “trial” divorce period for some couples.

Duncan Lewis Divorce Solicitors

Duncan Lewis solicitors can advise on all divorce law matters, including judicial separation or ancillary payments.

Duncan Lewis divorce solicitors can also advise on children’s law, including child contact and residence, children taken into Local Authority care, child abduction by a parent and child abuse.

For expert advice on getting divorced or childcare law, contact Duncan Lewis family and children’s solicitors on 020 7923 4020.