The prospect of divorce is never an enticing one, and many separated couples may wonder whether they really need to take the final, decisive and potentially costly step to legally end their marriage.  Rachel Macwilliam, Family Law Solicitor at Penderlaw Solicitors, explores the topic of separation without divorce.

Choosing separation rather than divorce

Separation, conscious uncoupling, whatever you decide to call the informal, non-legal route of ending a marriage, is a situation many couples find themselves in. However some are understandably hesitant of taking the more formal legal step of officially ending a marriage, especially if the separation has been amicable.  Perhaps they are not emotionally ready, can’t face the upheaval, disruption and public nature of it, they don’t want to upset their children, or are worried about the cost.

Amicable separation

This sort of gentle drifting style of ending a marriage may be less painful in the short term, but it can potentially result in lasting emotional damage, as well as financial problems and confusion.  What begins as an amicable separation can begin to become significantly less amicable when one spouse meets another partner, or begins spending what are still technically joint assets on their new lifestyle. It is important to note that separation does not end the financial liability or claims that each spouse has to the other.

Separation without divorce

Often couples choosing to separate subsequently end up divorcing at a later date.  If you choose this route there are a number of issues to be aware of which are outlined below.

• Financial responsibility without control
  If you are no longer living together or are living separate lives at least, you will not necessarily be aware of your spouse’s income, expenditure or debts. However, although you are not together anymore, you are still financially linked and therefore your creditworthiness could be affected by your spouse if they behave irresponsibly.
• Potential for assets to be hidden
  When a couple do decide to divorce, the Court requires that they provide statements for all their accounts going back 12 months.  They are not usually requested beyond that point. It is easy to see therefore, that a long separation can give ample opportunity for someone who is unscrupulous to hide assets from their soon to be ex-spouse.
• Possibly a lower eventual divorce settlement
  Should your spouse’s financial circumstances change during the period you are separated, and you subsequently decide to get divorced, you could find that your settlement is significantly reduced.  This could happen if they lose their job through redundancy for example or become physically or mentally unwell and cannot work, or because they have been financially irresponsible.
• New partners and emotional upset
  As well as the financial implications of remaining married whilst being separated, there are also the emotional aspects to consider. Bringing a new partner into the setup can often cause a previously amicable separation to turn sour.  It may prevent you from facing up to the fact that the relationship has ended and mean that you do not move on and look to the future as well as begin to heal emotionally.
• Uncertainty for children
  Uncertainty for any children involved can be very damaging, so bringing clarity to custody and what their day to day lives will look like can be helpful rather than harmful.  The introduction of No Fault Divorce in April 2022 should at least mean that neither spouse has to point the finger at the other one, and in that way help you to move forward without blame adding to the upset of the situation.

Separation Agreements

There are some instances where a short separation can have advantages, perhaps if you are not completely certain that you want a divorce, but even then, you should protect yourself with a separation agreement.  A separation agreement would cover financial arrangements and commitments as well as child maintenance where children are involved. A separation agreement can also speed up the divorce process at a later stage.

Get in touch

If you would like to speak to us about separation or divorce, you can reach us on 01872 241408 or email info@penderlaw.co.uk