There may be many reasons why separated couples do or do not want to divorce. It is sometimes seen as a hostile step, however this isn’t always the case. Divorce can often be the right step for both parties.
It is often the case that couples will agree to separate and sort out arrangements for their children and finances before speaking to a solicitor. In those cases, there are a couple of options available, including having a Separation Agreement drawn up to reflect the agreement, or, proceeding straight away with a divorce and obtaining a financial consent order.
Neither route is right or wrong but divorcing and obtaining a final order is the only way to (a) end the marriage, and (b) resolve all financial claims without scope for these being reopened later. Separation Agreements are usually prepared in contemplation of divorce after a period of 2 years, which means the issues need to be revisited at that time. A lot of clients prefer to deal with everything “in one go” thereby avoiding extra costs and the further emotional labour in the future. A ‘clean break’ and dismissal of further claims can only happen on divorce.
Where parties own a number of properties, there are tax efficient ways of dealing with them in the ‘tax year of separation’ i.e. by 5th April after separation. Legal and financial advice would be necessary in this instance.
It's also worth thinking about how pensions, which in most cases represent the most valuable assets of the marriage. They are sharable in the same way as other capital, such as equity in a home, but this can only happen by Court order (by consent or otherwise) as part of divorce proceedings.
We provide specific financial advice for this.
Sometimes, there is not enough capital to meet both parties’ needs and there may be an imbalance in respect of income/income needs meaning one party requires some ongoing financial support, known as Spousal Maintenance.
Maintenance can be paid on a voluntary basis, without divorce proceedings, but where there might be a disagreement over the duration or level of maintenance, or whether this should be paid at all, it might be necessary to make an application to Court for financial orders, including maintenance pending suit. This can only happen once divorce proceedings have been started.