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Should I divorce or stay separated?

Aug 25, 2017

When a couple decides to separate it will naturally be a distressing and confusing time.  While the majority of people go on to divorce, some couples decide to simply remain separated so as not to go through the seemingly stressful process of divorce, or there may be financial or business reasons why they wish to remain married.  Sam Miles, Family Partner, explains here the implications of not divorcing, and reviews what steps you could take to decide what is best for you.

Implications of separating and not divorcing

Deciding to remain separated and not divorce will have implications on your family in a number of ways, but mainly financially.  Until a couple is legally divorced, their accounts and financial responsibilities remain connected.  “This can have consequences if one person stops repayments on their mortgage for example,” begins Sam.  “If one of the couple moves out of the family home, they may feel aggrieved to have to continue contributing towards the mortgage as well as making rent payments on another home, even though both parties are still liable for payments.  If they do not wish to, or cannot afford to, keep up mortgage repayments on their previous home, then the house could be repossessed and the credit ratings of all people named on the mortgage would suffer.”

Another financial consideration would be if one party were to go on and grow their assets significantly after separation.  “We have seen several cases in Court over the last few years where a couple has separated then one of them has gone on to have commercial success, with the former spouse then making a claim on the new earnings,” continues Sam.  “When a couple divorce they can enter into a clean break order, which specifies that should one of the couple go on to inherit, grow their business substantially or win the lottery for example, then the ex-husband or ex-wife would not be entitled to make a claim on this money.  Without a divorce this is not possible and a former spouse could make a claim against any fortune, even if separated and even if the separation has been longstanding.”

Couples should also take into consideration the impact on their Will when separating.  “If a couple separates but does not divorce then if one of them should pass away their spouse could still be entitled to inherit if their Will was not updated at the time of separation, even if this is not the wishes of the deceased,” explains Sam.  “If there is no Will, the rules of intestacy would apply, and the spouse will automatically inherit the first £250,000 of the deceased’s estate, even if they are separated.”

Cohabitation and separation

If a couple does separate but continues living in the same house for financial reasons or for the sake of any children this adds complexity to any later divorce process.  “The reason for this is that if you are still living with your spouse it can be hard to show that you live separate lives and have therefore been separated for the minimum amount of time required by law to be able to divorce,” continues Sam.  “It can also reduce the available grounds for divorce – continuing to cohabit for longer than 6 months after discovering the adultery will mean this cannot be relied on as a basis for the divorce .”

In order to prove you have indeed separated while still living in the same house you must be able to prove that you do not share a bedroom, meals, bank accounts or time with the children, amongst other things.

Separation agreements

Separation agreements can help if you have decided to separate but are not yet able to divorce, or if you wish to remain separated but still make certain agreements with your spouse.  It’s important to note that a separation agreement isn’t legally binding but a Judge will normally recognise it if you have taken legal advice and the agreement has been drafted by a solicitor. 

Items that a separation agreement can cover include:

  • Who continues to live in the family home, and subsequently who pays the mortgage or rent and household bills
  • Arrangements for your children, including where they live, shared caring and any maintenance payments
  • Decisions over financial assets, including your debts, savings, investments and any household items that were bought jointly
  • Agreement as to any future divorce

When it comes to financial disclosure it is vital that both parties are entirely honest about this, otherwise the agreement could be challenged if you do end up in Court.

“There has been a changing tide in recent years as many couples decide to be together without marrying at all,” concludes Sam.  “This could be why the divorce rate has dropped; in 2015 there were 101,055 divorces, a 9% decrease from 2014.  It’s important for couples to realise that the best solution for them will depend on their own situation, which is why we would always advise meeting with a legal expert who can advise accordingly.  If you are worried about the potential cost or stress of the divorce process, then having an initial meeting with a lawyer can help you understand how it works and why it may be better financially and emotionally to have a clean break and divorce.”

If you would like to find out more about filing for divorce, or a separation agreement, you can contact Sam or the Family team on 02380 717431 or email familyenquiries@warnergoodman.co.uk.   

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.