Division 3 of Part V of the Matrimonial Causes Act (Chapter 282) provides a remedy short of dissolution.
Section 40
A petition by a party to a marriage for a decree of judicial separation may be based on one or more of the grounds specified in section 17(a) to (l).
Judicial separation is available on the same grounds as dissolution, except the last two:
- Paragraph (m) — five years’ separation. There would be no purpose in a decree relieving parties of the duty to cohabit where they have already lived apart for five years.
- Paragraph (n) — presumed death. The same reasoning applies.
Section 41 — the divorce provisions that carry across
Sections 18 to 24 and 27 to 33 apply to and in relation to a decree of judicial separation and proceedings for such a decree — and a reference in any of them to a decree of dissolution shall be read as a reference to a decree of judicial separation.
| Applied | Subject |
|---|---|
| s 18 | Constructive desertion |
| ss 19, 20 | Refusal to resume cohabitation; desertion after mental disorder |
| s 21 | Wilful refusal to consummate |
| s 22 | Aggregation of concurrent sentences |
| s 23 | Failure to pay maintenance — enforcement first |
| s 24 | Unsoundness of mind — still confined at the hearing |
| ss 27, 28 | Condonation, connivance, collusion — the absolute bars |
| s 29 | The discretionary bars |
| s 30 | Decree where a nullity petition is also before the Court |
| s 31 | The three-year rule |
| ss 32, 33 | Claim for damages; joinder of the alleged adulterer |
Section 25 — the separation provisions — is outside the range, consistently with section 40 excluding paragraph (m).
Section 26 — presumption of death — is likewise outside it.
But note that section 31 is applied. So the three-year rule requires leave for a judicial separation petition too, unless it relies solely on the grounds in section 17(a), (c) or (e), or is brought by way of cross-proceedings.
Why seek a judicial separation rather than a divorce
1. Religious or personal objection to divorce. The marriage subsists; only the duty to cohabit is relieved.
2. The three-year rule. Both are subject to it by virtue of section 41 — but where leave is refused for a dissolution, a petitioner may still wish to regularise the position.
3. Financial protection. Section 43 alters the position on intestacy, on suing in contract and tort, and on liability for necessaries. And the Part VII powers over maintenance, custody and settlement of property are available, because a petition for judicial separation is a matrimonial cause.
4. It preserves the option of divorce. Section 45 allows proceedings for dissolution afterwards, and permits the Court to treat the decree of judicial separation as sufficient proof of the facts on which it was made.
Two alternatives
Section 3(2)(a)(ii) preserves the jurisdiction of a court of summary jurisdiction to make separation orders or other orders having the effect of relieving a party to a marriage from any obligation to cohabit with the other party.
That is a far more accessible route than a National Court petition, and it does not require proof of a section 17 ground. For most people it will be the practical option.
But note section 3(3): once a marriage is dissolved or annulled under this Act, that jurisdiction ceases and existing orders cease to have effect.
Parties may simply agree to separate. Such an agreement has consequences under the Act:
- Section 19 — a refusal, without reasonable justification, of a bona fide request to resume cohabitation converts the agreed separation into desertion from the date of refusal;
- Section 17(j) — failure to pay maintenance agreed under a separation agreement is a ground for dissolution;
- Section 49 — a separation agreement is not a defence to a petition for restitution of conjugal rights;
- Section 25(3) — a decree may be made on the separation ground notwithstanding an existing agreement or decree suspending the obligation to cohabit.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 3, 17–33, 40–47, 49, 72–79
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.