Section 42 of the Matrimonial Causes Act (Chapter 282) states the effect narrowly, and section 43 then makes three specific changes.
Section 42
A decree of judicial separation relieves the petitioner from the obligation to cohabit with the other party to the marriage while the decree remains in operation, but, except as provided by this Division, does not otherwise affect the marriage or the status, rights and obligations of the parties.
The parties remain married. So:
- Neither may remarry. A purported marriage would be void under section 17(1)(a) of the Marriage Act and would be bigamy;
- Sexual intercourse with a third party remains adultery — and may found an action under the Adultery and Enticement Act 1988;
- Rights of succession continue, subject to section 43(2);
- The parties remain spouses for every law that turns on marriage.
Note the words “relieves the petitioner”. On the face of it the decree operates in favour of the party who obtained it.
Section 43 — three specific changes
While a decree is in operation, either party may bring proceedings in contract or in tort against the other party.
Where a party dies intestate as to any property while a decree is in operation, the property devolves as if he had survived the other party to the marriage.
Where, on or in consequence of the making of a decree, a husband is ordered to pay maintenance to his wife and the maintenance is not duly paid, the husband is liable for necessaries supplied for the wife’s use.
| Subject | Before the decree | While the decree is in operation |
|---|---|---|
| Suing each other | Restricted at common law between spouses | Permitted in contract and tort |
| Intestate succession | The surviving spouse takes | Property devolves as if the deceased had survived the other — so the separated spouse does not take |
| Necessaries | — | A husband in default on maintenance is liable for necessaries supplied to the wife |
A judicial separation does not end the marriage — but it does end intestate succession between the parties.
The deeming is one-directional in form: the property devolves as if the deceased had survived the other party. The practical effect is that the separated spouse does not inherit on intestacy.
That makes it important for a party who obtains a decree of judicial separation to review their will. The section addresses intestacy only; a will in favour of the separated spouse continues to operate according to its terms.
The rule that a deserted or separated wife could pledge her husband’s credit for necessaries is preserved here in statutory form, but made conditional: it applies where maintenance has been ordered and is not duly paid.
Its practical use is limited, but it gives a supplier a direct remedy against a defaulting husband and so assists a wife left without support. The primary remedies remain the enforcement provisions in Part X — see how a maintenance order is enforced.
This Division does not prevent a wife, during separation under a decree, from joining in the exercise of any power given to herself and her husband jointly.
So a decree does not disable the parties from acting together where a power — under a trust, a settlement or a joint appointment — requires both. See also the Married Women’s Property Act (Chapter 281), section 4 of which deals with joint powers.
Section 46 — discharge on resumption of cohabitation
(1) Where, after a decree has been made, the parties have voluntarily resumed cohabitation, either party may apply for an order discharging the decree.
(2) On such an application, the Court shall make an order discharging the decree if both parties consent, or if the Court is otherwise satisfied that the parties have voluntarily resumed cohabitation.
The word is “shall”. Where the parties have genuinely resumed living together, the decree goes.
Either party may apply, and the consent of both is one route but not the only one — the Court may act if otherwise satisfied that cohabitation has voluntarily resumed.
The consequence is that the section 43 changes fall away: intestate succession is restored, and the parties are again in the ordinary position of spouses.
Sections 43 to 46 apply to a decree of judicial separation made before the commencement date by a court in the country as well as to one made after it.
So a decree made before 8 July 1965 carries the same consequences, and may be discharged under section 46 in the same way.
For what happens if the parties later wish to divorce, see dissolution after judicial separation under section 45.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 1, 40–47, 72–79, 86–91
- Marriage Act (Chapter 280) — ss 17, 57; Married Women’s Property Act (Chapter 281)
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.