3 Alternatives to Divorce in England and Wales

Author:
Jane Auty
Partner, Family Law and Divorce Solicitor
Date:
28/10/2019

If your marriage has broken down, divorce may seem like the only way forward. However, divorce can seem too final. Maybe you’re not ready to take that step now or perhaps you don’t have the money to consider a divorce right now. Whatever your reasons, below we explain three options for you to consider.

For initial advice get in touch with our Divorce Solicitors.

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Separation Agreement

Currently, as the law stands, if neither person is willing or able to issue divorce proceedings on a “fault-based” ground, see Grounds for Divorce, you have to wait 2 years before you can apply for a divorce. This would be on the basis that you’ve lived separately and have been apart for that period of time.  Both of you would have to agree to this. If you can’t then you’ll either have to issue on a fault-based ground or wait for five years.

A Separation Agreement allows you to deal with most aspects of the financial side of your separation, without having to issue divorce proceedings first. So after the 2 year time period is up, the dissolution of your marriage should be quite straight forward. 

However, there are a number of things to consider if you are thinking about making a Separation Agreement:

  • In the 2 years leading up to your divorce, your financial circumstances or those of your former partner might change so much that your Separation Agreement is unfair. If this was the case, you would need to review the whole agreement and potentially start again. Some examples of where this would be the case would be losing your job, receiving an inheritance or wanting to get divorced sooner if you meet someone else.
  • The Court will always look at your situation at the date of the divorce, not the date of your Separation Agreement. If the agreement still seems a fair and reasonable division of assets, the Judge will probably approve it. But if the Judge does not think it is fair then the agreement can be reopened. This would mean negotiating your position again and trying to come to a revised agreement.
  • A Separation Agreement cannot deal with pensions. When a couple gets divorced, particularly after a long marriage, pensions can be one of the most valued assets in the matrimonial finances. Therefore, any settlement involving a Pension Sharing Order will have to be dealt with when the matter comes to the Court in the divorce proceedings. This is because the value of the pension scheme will probably have changed a great deal in 2 years and what seemed a fair split of the assets then, might not be so fair now.

A Separation Agreement can be useful to show that you and your former partner have split and allow you to agree on the financial settlement before your divorce, but you should understand and address any potential pitfalls. For the Court to take it seriously, such an agreement will need both of you to have legal advice and for the assets of the marriage dealt with under its terms to be defined and agreed.

Judicial Separation

This is an unusual application but it allows the Court to do everything apart from dissolving your marriage. The Court can still deal with the financial aspects of your separation, except for any pensions. Any Court Order dealing with pensions can only ever be implemented after the dissolution of a marriage and the Decree Absolute has been issued. 

You should note that a Judicial Separation will not allow you to re-marry. You will be legally separated but that is all.

Judicial Separations are rarely used, but most commonly used by those whose religious views prohibit divorce.

Do Nothing

Your final option is to do nothing. However, this does not change your situation at all and you should consider that your rights as a married person will continue until you legally sever those ties.

Ending your marriage will never be an easy decision to make but if you’ve decided that you don’t want to be in your marriage any more, you probably should consider divorce proceedings as soon as practically possible. Whatever else you do make a will and do all you can to separate yourself financially from your ex, by changing death in service benefit and insurance policy nominations and sever the tenancy on your home if you own it

If you want help and divorce advice about your current situation and the options above, talk to one of our Divorce Solicitors who can give you details about the positives and negatives of each option.

For initial advice call our Family Law & Divorce Solicitors

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