Are There Any Alternatives To Divorce?

By Victoria Richardson - 5th March 2021

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If you do not want to get a divorce, there are other options that you could explore. If you choose to do nothing for the time-being, be sure to protect your finances. This includes changing your Will and updating any death in service nomination.

Don’t want to divorce just yet?

For many couples following a separation, divorce seems too final. It’s a step some are not yet ready for. Others do not wish to divorce at all, perhaps for religious, cultural or other personal reasons. However, this can make things tricky, as you will still be considered married in the eyes of the law. This can prevent you and your spouse from moving forward with your lives, and may even create practical difficulties later down the line.

So, what else can you do?

Alternatives to divorce

There are a couple of alternatives to divorce, including judicial separation and a Separation Agreement.

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  1. Judicial Separation

A legal separation is officially known as ‘judicial separation’. While an application for judicial separation is quite rare, it’s a good option for couples who want to separate, but who do not wish to divorce for cultural or religious reasons.

A judicial separation does not legally dissolve your marriage, therefore you are unable to re-marry. However, it does enable the Court to make orders regarding your assets providing some security following separation. In fact, the Court can make the same financial orders as within divorce proceedings, with the exception of orders regarding the sharing of pensions.

Unlike divorce, you do not have to wait one year before issuing a Petition of Judicial Separation.

  1. Separation Agreement

A Separation Agreement is a written document that formally records how separating couples intend to divide their assets and responsibilities between them. This provides clarity for both parties.

A Separation Agreement is beneficial for couples who wish to divorce based on two years’ separation with consent (being a No-Fault petition). Otherwise, if you wish to divorce in England and Wales before being separated for two years, you will have to issue a fault-based petition.

Therefore, many separating couples choose to wait 24 months before issuing divorce proceedings to avoid having one party being ‘blamed’ for the ending of the marriage. A Separation Agreement is usually prepared in the interim to formally detail a financial agreement. This is a relief for both parties, allowing them to organise their finances sooner rather than later.

A Separation Agreement is not legally binding, but providing you have met the following criteria, it is likely to be upheld by the Court:

  • Both parties obtained independent legal advice upon the agreement;
  • Both parties made full and frank disclosure;
  • Both parties freely entered into the agreement;
  • The terms of the agreement are fair and reasonable.

Another advantage of a Separation Agreement is that it can later be used as the basis of your divorce settlement. The Court will review the agreement at the time of divorce to ensure the contents remain fair and reasonable. If your circumstances have not altered substantially, then it is likely to be approved by the Court and mirrored in a Consent Order. However, if a change has occurred (such as job loss or inheritance received) then a revised agreement may be needed.

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  1. Do Nothing

Finally, you could do nothing, although this approach is not recommended. It’s understandable that many separating couples do not wish to address the daunting process of divorce. However, failing to address matters is not advisable, as financial issues will remain unresolved.

If you do take this path, then at least ensure that you financially separate yourself from your spouse where possible. This may include making (or changing) your Will, severing a tenancy (if you own your property jointly) or changing any death in service nomination.

Should your spouse wish to defer divorce proceedings, be very cautious: this may be a delay tactic to provide them with time to hide or dissipate any assets.

Speak to our family law solicitors

If you have reached the decision that you no longer wish to be married, delaying divorce proceedings can have many legal and financial implications. It is vital that you get advice as to which option is right for you. One of our specialist family solicitors can help you. Call us today for a free initial no-obligation appointment.

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