Under English divorce law if you want to divorce amicably without allegations of adultery or unreasonable behaviour, you are required to have been living separately for at least the preceding two years. Many couples who wish to maintain a cordial relationship decide to wait. If this is a situation you find yourself in, you may want to consider the possible implications of using two years’ separation with consent as a basis for divorce.
What should be considered?
You need to bear in mind that in this situation there is no financial certainty regarding maintenance and the division of assets until a final financial order from the court is put in place. This can only be obtained after the decree nisi stage in the divorce.
The relevant time for the judge to consider who gets what financially is the date the judge is invited to make the final financial order. The judge will look to provide a fair result and may consider that the previous agreement is too imbalanced for him/her to order it.
It is possible for one person to have second thoughts about the arrangement and make an application to the court requesting better financial provision within the divorce. Whilst the court can consider the previous agreement, if it was entered into without both parties having been open about their true financial positions, without legal advice as to entitlement, or without significant pension disparity having been factored in, the court may well decide the parties shouldn’t be held to their earlier arrangement.
You should also bear in mind that your pension and investments will, hopefully, continue to increase, resulting in the judge considering a higher ‘matrimonial pot’ at the time the financial order is considered.
Until decree absolute you remain married. If you own your property as joint tenants, should one of you die, the deceased’s interest in that property will pass to the other joint owner irrespective of any provision in a Will. You may want to consider changing the joint tenancy to tenants in common and then updating your Will to reflect your wishes. Taking legal advice at any early stage can help you put your affairs in order and hopefully avoid further disputes should anything happen to you.
What happens if you receive any inheritance during the two year separation period?
If you receive any inheritance during the period of separation where you remain legally married, you may argue they should be excluded from any financial calculations. However, if the reasonable needs of your spouse and children cannot be met without utilising the additional money from your inheritance, the judge can factor these amounts in to their assessment when considering overall asset division.
Can any agreements be put in place before the two year period ends?
You can have a separation deed drawn up to set out how you and your ex-spouse believe the assets should be split. It’s a wise precaution, but ultimately only a financial order within divorce proceedings will give finality.
For more information on using two years’ separation with consent as a reason for divorce, please contact Anita Scorah in our Family Law team on 01625 442123.