For some married couples there can be confusion about whether a divorce is necessary. Some estranged couples believe that if they have been separated from their partner for long enough, all financial ties, as well as emotional, are over. Others feel that it may make more financial sense to separate and not divorce to save on the cost of the divorce process, especially as they have separated amicably.
However, it’s important to understand the difference between divorce and separation, and what financial commitments both partners have to each other if they don’t divorce. In this article we will cover the difference between separation and divorce, the dangers of separating and not divorcing and discuss the options open to you if you do not want to divorce.
What is the Difference Between a Separation and Divorce?
Unlike divorce, a separation does not put an end to a marriage. Separation allows you to live separately from your partner but remain married. Separation does not end the financial commitments or claims that each spouse may have regarding the other’s finances or assets. This means, without legal support, no matter how long you are separated your partner will have a claim over your finances and assets if you do not divorce.
Why Do Couples Separate but Not Divorce?
You and your partner may decide to separate, but not officially divorce. This could be because:
– Your religious beliefs
– Worries over the cost of a divorce
– You want time and space to work out if you want to end the marriage
– You’ve been married for less than a year
Couples who decide to separate and not divorce may part amicably initially, and feel that they can trust each other, doubts and problems can arise as time passes, circumstances change, or new relationships may form with other people. It is crucial to seek legal advice when you separate in order to protect your own best interests.
Legal Issues When Separated but Not Divorced?
There are a few key considerations if you are separated from your ex but remain married in the eyes of the law. Much of this is to do with the finances and assets that you have together as a married couple and as individuals.
You are financially tied to each other
If you inherit, experience business success or a financial windfall, your spouse is within their rights to try and make a claim on such assets, as there has been no legal end to your marriage.
The same can be said if your spouse gets into difficulty with their finances, you may suffer too. If your spouse is sued or engages in any financial misdeeds, your assets could be at risk.
Also, any assets or pension acquired after a separation can be in the “pot” for division in a divorce if they are not safeguarded. A family law solicitor can advise on this.
You have no control over how your spouse is managing matrimonial assets
If you are living apart, then you are likely unaware of your spouse’s financial situation, including earnings, spendings, investments or if they are accumulating debts. If your ex-spouse incurs debt after you sperate, you may also be responsible for paying this back out of matrimonial assets.
Long-term separation provides the perfect opening for your spouse to hide assets
A long separation makes it easier for your spouse to be hiding marital assets. If you have been separated for more than 12 months, it can be difficult to see what has gone missing.
Your settlement could end up being far less
Your divorce settlement will be based, for the most part, on the current financial circumstances of you and your spouse. If your spouse experiences financial changes during your separation, the amount of maintenance or financial settlement you might expect to receive if you do divorce could be significantly reduced.
You (or your spouse) could meet a new partner
Whilst you are still legally married, it may damage your settlement negotiations if you start a relationship with someone else. Either of you, if in a new relationship, may be wasting joint marital assets by providing financial support for their new partner or purchasing property and assets with their new partner.
Your standard of living could reduce
During a separation, you may choose lower your standard of living. This could make it more difficult to obtain maintenance based upon your previous marital lifestyle. If you have been able to make do with less, your spouse can argue that you need less to live on than you did while the two of you were together.
What Would Happen to my Inheritance If I was Separated and Not Divorced?
Even if you are separated, you are still married, meaning any money or other assets inherited or gifted to you during your marriage are not automatically excluded from the matrimonial financial ‘pot’. If you wish to protect an inheritance, or if the person making the inheritance is keen for you to protect it, you should consider entering into a pre-nuptial or post-nuptial agreement with your spouse.
Furthermore, the Rules of Intestacy do not recognise a separated couple any differently to a happily married couple. This means that if one spouse died without a Will, the other would be entitled to inherit from them as the main beneficiary of their estate, regardless of whether they were still happily married or had been estranged for years.
Can I buy property if I’m separated but not divorced?
When you’re married you’re automatically entitled to a share of your partner’s assets. This means you have a claim over the property, even if you’re not the legal owner. If you want to protect assets that you bring into the marriage, you should consider getting a prenuptial or postnuptial agreement.
Can You Be ‘Legally’ Separated and Not Divorced?
When you separate and decide to not divorce, you can choose to either create a Separation Agreement or Legally Separate.
You can have a court order that outlines the rights and responsibilities of each spouse. It allows for the couple to continue referring to each other as their spouse while at the same time allows for the advancement of their separate lives. This is referred to as legally separating. It is advised to seek legal advice if you are considering a legal separation.
A Separation Agreement is a document that is drafted to reflect the agreement reached between you and your partner and allows you to make decisions on financial commitments or assets you both have and child maintenance of any children. Both partners sign and confirm their agreement with a family solicitor. This is not legally binding but can be used if you do decide to divorce at a later stage.
The benefits to getting a separation agreement:
– Allows you time to consider whether you want to get divorced
– Provides legal and financial security
– It can speed up the divorce process, saving time, money, and emotional strain, should this happen at a later stage, as arrangements are already in place.
If I leave, will I still have to pay the mortgage?
Legally, if you and your spouse both own the property and are named on the mortgage, you will both continue to remain jointly liable for meeting any mortgage repayments, even if you choose to leave the family home.
How Can a Solicitor Help?
A family law solicitor can offer crucial advice when you separate, which can help you place your best interests first, and offer you the best options based on your circumstances. They can also help with drafting a separation agreement, a post or pre-nuptial agreement if needed, and can help with advise on your options for divorce, and support by creating an asset protection strategy.
You can email Howells to make an appointment at email@example.com or call us:
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