“Should we do nothing or file for divorce”
A separation from your spouse is often a frightening and confusing time and I am often asked whether a person should just have a period of separation or file for divorce.
If your marriage has broken down you generally have three choices: You separate but you remain married. You file for a judicial separation. You issue divorce proceedings.
Judicial separation is usually only applied for if the parties do not wish to divorce due to religious beliefs.
A judicial separation is a similar process to a divorce however you remain married. You lodge a petition and receive a decree of separation at the end. A judicial separation allows the court to make financial orders in the same way as a divorce. There are two points to bear in mind though: You are unable to benefit from a spouse’s pension by way of a pension share or attachment as these orders only take effect on the finalisation of a divorce. If your spouse passes away after a decree of judicial separation is granted, you will not benefit from their estate even if they have no Will.
Judicial separations are extremely rare but we are experts in family law and accordingly can advise on this if necessary.
The main focus of this article is to consider whether a separation is more beneficial than a divorce.
When considering whether to file for divorce you must consider whether you have grounds to divorce. You must prove that your marriage has broken down irretrievably due to adultery, unreasonable behaviour, desertion, or you have been separated for 2 years and you both wish to divorce or alternatively you can divorce if you have been separated for 5 years or more. You may feel, upon the breakdown of your marriage that you do not have grounds to prove that it has broken down irretrievably at this stage, or that you are just not ready for a divorce. In this instance, you may consider a separation.
You have two options when it comes to separation. The first is that you separate informally. In this case, you separate and do nothing. You continue on with your life with no formal agreement until such time as you wish for a divorce. The second option is that you formalise the position by way of a Separation Agreement. A Separation Agreement is a contract between you and your former spouse. If a term of the Separation Agreement is breached, it can be enforced under contract law, with limited consequences available to the party in breach or you can issue financial and divorce proceedings and ask the court to consider the Separation Agreement when making an order.
In a subsequent divorce, we would seek to change the Separation Agreement into a consent order (discussed later). A point to bear in mind with Separation Agreements is that if yours or your spouse’s financial position changes, a Family Court may not uphold the Separation Agreement within subsequent divorce proceedings. Further, if the Family Court feels the agreement is unfair or indeed unenforceable they could alter it. That said, there are ways to make the agreement as strong as possible in an attempt to ensure that a Family Court will uphold it: Have the agreement drafted by a legal professional. Ensure that both you and your spouse provide full financial disclosure. Ensure that you both have independent legal advice.
Following these three rules will give the best chance of a Separation Agreement being upheld in a subsequent divorce.
A couple of negative points to consider is that with a Separation Agreement you are unable to implement a pension share/attachment. These can only be implemented following a divorce. You could however, have a provision within the agreement that a pension share/attachment is intended after a subsequent divorce. Further, if you are unable to agree on the terms then there is nothing further that can be done unless you wish to file for a divorce. This will then allow the court to assist with financial matters.
If you decide to proceed with a divorce, then we are able to deal with the finances at the same time. Upon a financial agreement being reached we would draft this into a Consent Order. A Consent Order is a legally binding court order which can be enforced through the Family Court. A Consent Order becomes legally binding upon it being sealed (approved and stamped by the court) and is enforceable as soon as the divorce is finalised. If you are issuing divorce proceedings you can also deal with pensions. Another positive is that if you are unable to reach a financial agreement the court can assist. The downside is that it usually more expensive.
Separation/Divorce
Will this result in our marriage ending?
No/Yes
Upon my death what will happen if we don’t have a Will?
In the first instance, the estate passes to spouse (except in judicial separation) and then in accordance with the Rules of Intestacy
Estate passes to a subsequent spouse or other members of family in accordance with the Rules of Intestacy
How valid would the financial agreement be?
Enforceable under contract law or failing that you would have to issue divorce and financial proceedings.
Legally binding and enforceable in a Family Court
What will happen to our property if it is held, a) as joint tenants and b) as tenants in common if one of us dies?
- a)Will pass to spouse in accordance with the Rules of Intestacy
- b) The deceased’s share will pass in accordance to the Will. If there is no Will then to spouse in accordance with the Rules of Intestacy.a) Will pass to the former spouse.
- c) The deceased’s share will pass to subsequent spouse or other members of the family in accordance with the Rules of Intestacy.
My spouse has a large pension, can this be shared?
No/Yes
What matters can be dealt with?
Everything, save for the implementation of a pension share / Everything
It’s been several years since we separated/divorced – can my (ex)spouse still claim against me?
Yes / No (dependant on the terms of the final order)
If you are or find yourself if a relationship breakdown and you require further advice please do not hesitate to contact us.
We have Solicitors offices in Southampton, Hedge End, Chandlers Ford, Winchester, Lymington and Richmond-Upon-Thames.
