Understanding your choices after separation

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Getting divorced can seem like a frightening and difficult decision. If you are experiencing a relationship breakdown and feel that this is likely to be permanent, taking the first step can seem daunting.

If you have separated from your spouse, it is really important that you consider your options carefully. It may be that you do not feel ready to divorce, but it is vital that you know what this may mean and what you might be able to do.

What if I don’t want to divorce?

If you do not want to pursue a divorce when you separate, this will, of course, mean that you and your spouse will remain married. This has implications, particularly in relation to financial elements, as you would remain linked, given that your matrimonial claims against each other remain open. This means that you are each able to pursue the other financially at any stage in the future, and this could include upon your estate, on death.

It is possible to enter into what is called a ‘separation agreement’ if you do not divorce. This is essentially a contract which sets out the terms of your separation and will often document the parties’ financial agreement. This is different from the financial order you can obtain on divorce as it is a contract, so this is treated differently, and there are various elements to be satisfied. A separation agreement can also be more easily undermined, for example, should circumstances change. That said, if you are clear that you do not wish to divorce, at the very least, a separation agreement should be obtained and properly entered into so that there is a record of the terms of the agreement you have with your spouse.

Why should I think about divorcing?

Divorcing will bring finality and will end your marriage. Since April 2022, you have been able to pursue a divorce on the basis of ‘no fault’, meaning that you do not need to blame each other for the relationship breakdown. The court will need to be told that the relationship has broken down irretrievably, and for that reason, a divorce is being pursued. You are also now able to apply for a divorce jointly with your spouse, hopefully meaning that the process is now less hostile and a decision you are entering into together. When you have your “final order” of divorce, this means that you are formally divorced.

The important point to consider is that if you pursue a divorce, this also means that the matrimonial finances can be dealt with formally.

Obtaining a ‘final order’ on divorce alone does not mean that your financial claims against the other are brought to an end. You will need to think about the finances alongside the divorce, and there are various ways in which you can negotiate a financial settlement with your spouse, for example, with help via solicitors, with a mediator or engaging with alternative dispute resolution options (for example, arbitration or early neutral evaluation). Settlements can be finalised through the family court, but this is usually viewed as the final option.

Once a settlement has been reached, it can be documented in what is called a ‘consent order’. Once you have the “conditional order” of divorce, the consent order can be sent to the court for approval with another form known as a ‘D81 Statement of Information’. This provides the court with an overview of the finances so that the Judge can make the order safe in the knowledge that the effect of this will be fair to both parties. This consent order will usually provide that after the settlement is put in place, neither party will be able to bring any further claims against the other, including upon their estates on death.

This option, therefore, provides security to both parties and for this reason, it is very important to pursue an order regarding the finances alongside the divorce. Consent orders are usually difficult to challenge after they are made unless there are exceptional circumstances, such as a party not providing their true financial information.

Contact our Family Law solicitors today

We appreciate that considering a divorce is often an overwhelming and emotional decision. The family lawyers at Ashtons Legal would be very happy to further discuss the options mentioned in this article or, indeed, any element of your separation with you, so to advise as to the best way forward.

Should you require legal advice as to how to proceed with a divorce or a dissolution, or any form of Separation Agreement, our specialist Family Law team will endeavour to deal with matters sensitively and swiftly. Please do not hesitate to contact us by using our online enquiry form or by calling 0330 191 0070.


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