What are the risks of a couple separating but not getting divorced?

When facing the prospect of making the difficult decision of whether to separate or pursue a formal divorce, many couples decide to take a breath and wait. This article aims to shed light on the implications of separating and highlights the potential pitfalls of not obtaining a divorce.

What are the pitfalls of not getting divorced?

While separating may seem like an appealing option for some couples, it is important to consider the potential pitfalls associated with this choice.

• Without a divorce, separated couples may lack legal protections and rights regarding property, inheritance, pensions, and other financial matters. This can leave individuals vulnerable and potentially disadvantaged, particularly if it has been many years since the separation. What happens if you or your ex, in the intervening years, substantially grows a business or wins the lottery? Without a divorce, it is still possible to make a claim on this money, even if the separation has been longstanding.
• By not getting a divorce, couples remain financially entangled even after separating. This can lead to complications and conflicts, particularly if one party incurs debts or makes significant financial decisions that affect the other person.
• Failing to obtain a divorce can leave individuals exposed to potential future claims, as referred to above. In the event of one party’s death, the surviving partner can assert claims on the deceased spouse’s estate. Similarly, if one party enters into a new relationship, the absence of a divorce can complicate matters and create uncertainty.
• Without a formal divorce, issues related to child arrangements and maintenance may be less clear-cut. The absence of a legally recognised agreement can cause confusion and lead to problems, which has an effect on the well-being of the children involved. Obtaining a divorce allows formal child and maintenance arrangements to be made, providing stability and protection for everyone.

If you decide to separate and not go through the formal divorce process, you may think it is sensible to regulate and formalise your separation by entering into a separation or post nuptial agreement.

What is a separation agreement?

To address the legal complexities of separating without divorcing, couples may choose to enter into a separation agreement. This outlines the terms and conditions of the separation, including arrangements for finances, property division, child arrangements, and other relevant matters. It serves as a practical and formal agreement between the parties, providing clarity and reducing the potential for future disputes.

By entering into a separation agreement, couples can establish clear guidelines for their separation and protect their individual rights and interests. These agreements can offer a degree of stability during the separation process, and while they are not legally binding, can provide a clear record of the parties’ intentions, which may be referred to in court if necessary.

What is a post-nuptial agreement?

A post-nuptial agreement sets out, post marriage, how a couple’s assets, finances, and other matters will be divided in the event of separation, divorce, or death. It typically addresses issues such as property division, spousal maintenance, and inheritance rights. They are also designed to provide clarity and certainty regarding the division of assets and financial arrangements, and can be helpful in avoiding lengthy and costly legal disputes if the marriage breaks down. However, it’s important to note that such agreements are subject to judicial discretion and may not be enforceable if they are considered unfair or fail to meet certain legal requirements.

What are the benefits of staying married as opposed to divorcing?

The advantages of staying married rather than divorcing include:

• The potential for enhanced financial security; divorce often involves the division of assets and can lead to financial instability. By remaining married, couples can pool their resources, share financial responsibilities, and work together to achieve common financial goals. This can provide a stronger financial foundation and more opportunities for long-term financial stability.
• For some couples with children, staying married can have a positive impact on parenting and family dynamics. Maintaining a stable and supportive environment is crucial for children’s well-being and development. By staying married, parents can work together as a team, providing a consistent and loving presence for their children.
• Marriage often comes with a built-in support network of family, friends, and the wider community. These social connections can provide valuable support during challenging times. This support may not be forthcoming during a divorce, as respective families take sides.

Can my ex still make a claim on my Will if we are not divorced?

If you and your ex-partner are separated but not divorced, it is still possible for them to make a claim on your estate. Under the Inheritance (Provision for Family and Dependants) Act 1975, certain categories of individuals, including spouses or civil partners, can potentially make a claim for financial provision if they can demonstrate that they financially depended on you or had a reasonable expectation of financial support from you.

When deciding on such claims, the court considers various factors, including the length of the marriage or civil partnership, the financial resources and needs of each party, and the obligations and responsibilities towards any children.

It is important to note that the court has discretion in these matters, and each case is assessed on its own merits. Therefore, if you have concerns about your ex-partner making a claim on your Will, it is advisable to seek professional legal advice from a solicitor who specialises in family law and estate planning. They will be able to provide you with specific guidance based on your individual circumstances.

When contemplating separation without divorcing, it is crucial to consider the implications and potential pitfalls associated with this decision. While separation and post nuptial agreements can offer an alternative, they do not provide the same level of legal protection and certainty as divorce. Engaging in a formal divorce process allows for the resolution of financial matters, division of property, and establishment of child arrangements, offering greater clarity and protection for all parties involved.

If you or your spouse are considering separating or divorcing and you require legal advice to understand your options, contact specialist divorce solicitor Rebecca Calden-Storr of Stowe Family Law. With over 20 years’ experience, she is regularly instructed on matters arising from relationship breakdown, including divorce, financial disputes, complex assets, and disputes relating to children.