You cannot apply for a judicial separation when you already have a signed separation agreement in place which has been made an order of court.
An application for a judicial separation must be based on one of the following grounds:
- One party has committed adultery.
- One of you has behaved in such a way that it would be unreasonable to expect you both to continue to live together.
- One of you has deserted (left) the other for at least one year at the time of the application.
- You have lived apart from one another for at least one year at the time of the application for the decree.
- The court considers that a normal marital relationship has not existed between you for at least one year before the date of the application (this is the most common ground on which the decree is granted, as neither party has to be shown as being at fault).
The Family Law Act 2019 provides a definition of ‘living apart’. A married couple who live in the same home as one another are considered to be ‘living apart’ if they are not living together as a couple in an intimate and committed relationship. The Act also states that a relationship does not stop being an intimate relationship just because the relationship is no longer sexual in nature.