There are various reasons why you may not divorce right away. It may be, for example, because you start the process but become overwhelmed, funding may have dried up or simply, you may not deem it a priority.
Not taking some form of legal action once you have permanently separated, however, can leave you in a difficult position and it is important that you act.
What are the risks?
Financial claims remain live
Until you are divorced (obtained your Final Order, previously known as a Decree Absolute) and there is a Financial Remedy Order in place addressing what is to happen with the matrimonial finances, financial claims remain live. This means that your ex-spouse could make a claim against any assets that you have at the time that they bring their financial application. This includes assets which are accrued post separation.
It is important to note that it is not sufficient to only obtain your Final Order (complete the divorce). You must also obtain a Financial Remedy Order in order to dismiss financial claims.
For this reason, it is important that you address the divorce and the financial aspect of the marriage at the earliest opportunity even where you or your ex-spouse do not have any financial assets.
Impact on new relationships
In the event that you start a new serious relationship, your ex- spouse may wish to understand your new partner’s resources. This is because this is an asset that is available to you. If you are cohabiting, you are sharing your living costs with your new partner as opposed to having to pay them entirely yourself.
You may also have access to other assets of your new partner such as income and/or property.
Complexity
It often becomes more difficult to untangle relationships and financial matters because circumstances change as time passes. For example, at the time of separation, it may not have felt necessary to address the divorce or financial aspect of the marriage because both parties had sufficient assets. However, if one party were to lose their job in the following years or win the lottery, thought will need to be given as to how to address these changes in circumstance.
This may give rise to complex legal arguments and in turn, increase how long it takes to resolve the divorce and increase legal fees.
Provision on death
If you do not have a Will, part or all of your estate will be left to your spouse under the Intestacy Rules. Considering your separation, you may not wish for this to be the case.
You cannot re-marry
Whilst this may not be an imminent concern, under current divorce law, the divorce process takes a minimum of 26 weeks. This is assuming that both parties and the Court consider documents immediately which may not be the case. Future plans may then be impacted by not being divorced.
What to Do
If it is the case that, for whatever reason, you do not want to get divorced immediately following a permanent separation, or you find yourself in a situation where you are separated but not divorced, please do contact us for specialist tailored advice on your circumstances.
