Judicial Separation under the Special Marriage Act

Judicial separation sits between a subsisting marriage and divorce. It relieves the petitioner of the duty to cohabit with the other spouse, but leaves the marriage legally intact, so that reconciliation remains possible and neither party may remarry. Under section 23 of the Special Marriage Act it is available on the same grounds as divorce, and on failure to comply with a restitution decree. If the parties do not resume cohabitation for a year, either may then seek divorce. This note covers the grounds, effect, rescission and consequences.

1. Grounds

Figure 1: Section 23 and the route to divorce

• Text, s.23(1). A petition may be presented to the district court by the husband or the wife (a) on any of the grounds in s.27(1) and (1A) on which a petition for divorce might have been presented, or (b) on the ground of failure to comply with a decree for restitution of conjugal rights.
• Grounds borrowed from divorce. These include adultery, desertion for two years, imprisonment for seven years or more, cruelty, incurable unsoundness of mind, communicable venereal disease and presumption of death, and the wife's additional grounds (Topics 15, 16)
• Decree. The court decrees judicial separation if satisfied of the truth of the statements and that there is no legal ground to refuse.

2. Effect and Rescission

• Effect, s.23(2). Once a decree is granted, it is no longer obligatory for the petitioner to cohabit with the respondent.
• Marriage continues. The parties remain husband and wife. Neither may remarry, and a second marriage would be void and punishable as bigamy.
• Rescission. On a petition by either party, the court may rescind the decree if satisfied of the truth of the statements and that it is just and reasonable to do so, for example after a reconciliation.
• Maintenance. The court may order permanent alimony and maintenance on passing the decree (s.37; Topic 22)

3. Judicial Separation and Divorce

Figure 2: Two decrees compared

• Route to divorce. Where there has been no resumption of cohabitation for one year or more after a decree for judicial separation, either party may petition for divorce (s.27(2)(i), inserted in 1970)
• Alternative relief, s.27A. In a petition for divorce on certain grounds, the court may grant judicial separation instead, if it considers that just in the circumstances (Topic 17)

4. Frequently Asked Questions

Can a judicially separated spouse remarry?

No. A decree of judicial separation relieves the petitioner of the obligation to cohabit, but the marriage continues. A remarriage during its subsistence would be void and punishable as bigamy.

Can the respondent in a judicial separation case later seek divorce?

Yes. Under s.27(2)(i), where cohabitation has not been resumed for one year or more after the decree, either party may petition for divorce, not only the spouse who obtained the decree.

Can judicial separation be sought on the ground of non-compliance with a restitution decree?

Yes. Section 23(1)(b) makes failure to comply with a decree for restitution of conjugal rights an independent ground for judicial separation, in addition to the divorce grounds in s.27(1) and (1A).

Can a decree of judicial separation be cancelled?

Yes. Under s.23(2), the court may rescind the decree on a petition by either party, if satisfied of the truth of the statements in the petition and that it is just and reasonable to do so, as where the parties have reconciled.

5. Related Topics

• Topic 10: Restitution of Conjugal Rights, Section 22. The companion remedy.
• Topic 17: Alternative Relief and the Bar on Early Petitions. Section 27A.