Should I Divorce or Separate?

This is one of those simple questions that tends to throw family lawyers off balance – and yet it pops up from time to time so it may be worth unpacking a little. The confusion exists because it might refer to three or more very different scenarios:

Someone who is seeking time out from a relationship

Here, the relationship may be in difficulties but the couple has not abandoned the hope that there may be a way back. The way of answering that question they sense is to spend time apart with the intention that the experience of living that way is expected to give clarity as to the future of the relationship. They do not want to spend lots of time negotiating a separation of their finances that may never be needed.

I have tended to find this an uncomfortable piece of work where each side has a lawyer: it is very easy for costs to run away (in what should usually be just a holding situation) as discussions degenerate into detailed negotiations out of fear that the status quo for the future is being established.

The better answer is usually to step into mediation and to think clearly and in a cost-effective way about what has to be covered off for this relationship hiatus to work well and be managed safely.  There may then be a referral for separate independent advice for a sense check.

There is a huge amount to be covered off. I have had the privilege of working with a number of clients on this very issue. I’ve been able to build up something of a checklist as to the issues involved. For example, what are the ground rules about intimate relations between the parties or with third parties during this time; what is said to family members; and how is this presented to any children?

Where the relationship is over but a person is not yet ready to terminate the tie of the marriage

Family lawyers treat the logistical ending of the marriage as “the simple bit”: obtaining a divorce is generally an administrative process, which we seek to manage efficiently so as to contain cost.  But for many married people, this step is anything BUT simple – it is understandably an enormous psychological step, which they are not yet ready to take. Here we would look to negotiate and reach agreements around for example:

• long term parenting arrangements; and
• financial structures.

The divorce process itself would then be left for later.

What you can and can’t do:

• The court can be involved around parenting issues or orders for personal protection in circumstances of domestic abuse.
• You are also permitted to use the CMS to decide child maintenance as soon as you separate and the court also has powers to make orders for spousal maintenance.
• The court can’t go further than that and make orders about capital or to decide and divide pensions, because it is only where there is a divorce that a judge has power to make such orders.
• But if you can reach an agreement, then you can have a lot of this wrapped up in a form of contract between you generally referred to as “a deed of separation” and then you will usually formalise the arrangements if/ when there is a divorce.

Judicial separation

The third scenario is where the separation is permanent but there is a deliberate step to retain the tie of the marriage. This is most common where parties are older and they are seeking to preserve the widow’s or widower’s pension to maximise the resources available between the parties.  [It quite often seems to be an NHS consultant’s pension.]

In judicial separation the court has all the powers to sort out capital and maintenance so the court will be there as a safety net if you can’t reach an agreement – but, because the marriage is not ending it does not have powers to order the distribution of pensions – those powers could only be exercised if there is a later divorce.

What is usual?

What family lawyers feel most comfortable with most of the time is dealing with the divorce at the same time as addressing all those other consequences of separation. This is often because:

• It means that there is the fall back of a court process if things get stuck and need moving along with court timetabling;
• It avoids a return visit for the client;
• It makes things clear and safe quicker; and
• It avoid the costs-duplication of writing up agreements and then later converting them into orders.

But what always matters most is what matters to you – and flexing the process to meet your needs should be what is usual and the best way forward.