Contested separation

A separation is contested when one spouse applies to the court and the other does not agree, either to the separation itself or to what should follow. This page walks through how it works. Article numbers refer to the Civil Code, and “regulations” refers to the Family Court Proceedings Regulations, 2026.

The grounds

The spouse who applies must rely on a ground set out in the law: adultery, excesses, cruelty, threats or grievous injury (or that the marriage has irretrievably broken down), or desertion for two years or more (articles 38, 40 and 41). See personal separation for the detail.

The steps

1. Asking the court’s permission. The spouse who wants to proceed files a letter with the Family Court asking for authorisation. With it they file a sworn note listing their assets and liabilities, an income statement for the last three years (for an employee, the FS3), and proposals for property, the children and maintenance (regulation 17).
2. Mediation. The other spouse must reply within 20 days. Mediation then generally involves at least six sessions within eight months, which can be extended by up to four months, although mediation that is unsuccessful may be ended earlier. The mediator first tries to reconcile you, and then helps you try to agree terms (regulations 18, 19 and 23 to 24). See Family Court mediation.
3. Authorisation. If mediation does not lead to agreement, or the time runs out, the mediator tells the court and the court grants authorisation to proceed (regulation 37). Either spouse can then bring the case, or a counter-claim, on any of the grounds in the Civil Code (regulation 38).
4. The case. A spouse has two months from the court’s decree to start the case, unless the court allows longer for a serious reason. After the written pleadings, the court appoints or confirms a children’s advocate for any children. It gives the applicant up to six months to file evidence by affidavit and documents, then the other spouse up to six months, extendable on serious grounds. The court keeps hearing the case while that time runs (regulation 47).
5. Judgment. The court decides all the points and gives its judgment. If it cannot yet decide how the community of acquests is to be liquidated, it decides everything else first and returns to that point later (regulation 48).

Orders while the case is going on

You do not have to wait for the end of the case.

• Maintenance. Either spouse can ask for a maintenance allowance in proportion to their needs and the other’s means (article 46A). The court’s decision must be reasoned, and it can have maintenance deducted from the payer’s salary or paid by standing order (regulation 30).
• The matrimonial home. While the case is pending, either spouse may leave the home, and the court can decide who, if anyone, lives there (article 46). A spouse who leaves can also ask the court to allow a reasonable sum to be withdrawn from the community of acquests to pay for somewhere else to live (article 47A).
• The children. The court decides care, custody, residence and access in the meantime. It looks at each parent’s equal responsibilities and rights, the children’s interests and each parent’s willingness and ability, and the children’s welfare is the paramount consideration (article 47 and regulation 32).
• Other protection. Each party can ask the court for provisional orders, and for action if the other breaks an order (regulations 33 and 34).
• Where there is domestic violence. Where domestic violence is involved, an application for protective measures under article 37 of the Civil Code is heard within four days. The separate procedure in regulation 20(1), which would let the court suspend mediation and hear the matter urgently, has not yet come into force (Legal Notice 219 of 2026).

Blame and its consequences

You must have a ground to ask for a separation. If the court finds that one spouse gave cause for the separation through adultery or desertion, that spouse can lose certain rights, including a share of assets built up mainly through the other’s work, gifts received from the other, and the right to demand maintenance. In cases of excesses, cruelty, threats or grievous injury, the court has a discretion to apply these consequences. If both spouses had grounds, the court decides whether to apply them to both, to one, or to neither (articles 48, 51 and 52).

If you are thinking about contesting

Whether to contest, and on what, depends on your family’s circumstances. We can go through the grounds, the evidence you would need and the likely stages, and help you consider whether an agreement is possible. There is no obligation to continue after a first conversation.