At Prism Family Law we often meet with wives or husbands who say that they are thinking about living separate and apart from their spouse, but there are many reasons why, if a marriage has truly broken down, it is a bad idea to just simply separate.
Advice to Wives whose Husbands want to separate but not divorce
Firstly, if the marriage has truly broken down irretrievably and so is beyond repair and possible reconciliation then it is almost always possible to issue a divorce petition immediately.
You do not need the permission, consent or co-operation of your spouse to issue a divorce petition and so long as you have been married for at the very least one year there is no other barrier to seeking a divorce from the family court.
There are good reasons for a divorce in almost all cases of matrimonial breakdown and advice should always be sought on your available options.
Separation is often suggested by one spouse as a “trial separation.” It may suit that other person but it is very rare for it to be in both parties’ best interests.
If despite everything you cannot tolerate or live with your spouse, then any separation should only last long enough for you to organise your petition for a divorce. You should not allow the separation to stretch into months or years unless you have very good reasons for doing so. This can often lead on to other issues, especially if minor children are in background. It is all too easy to let that situation drift, however, you will not be able to move on with your life and your spouse will still be your next of kin so will very likely still then be the person to inherit in the event of any death the entirety of your estate (subject to any Will in place) regardless of whether you subsequently set up home with someone else.
It should also be remember that for so long as you are both married to one another then you continue to be able to pursue financial claims against one another as a consequence of that marriage, despite any separation – your spouse will then continue to be a stakeholder in your income, capital and pension and it is important that you understand that the courts decide financial issues between divorcing couples as at the time the application for relief is made rather than from the time of any separation. This means that any financial assets acquired, accumulated or even won (say in the form of a lottery win) would be taken into consideration – if you don’t believe that this could happen, then the best example of this happening even after divorce is the case of Wyatt v Vince.
Couples then talk of having a ‘legal separation’. What they usually mean by that is that they are simply then living separate and apart from one another but with nothing recorded in writing between them. It is possible for you to apply for a judicial separation but that is something very different (and hardly ever advisable).
Accordingly, by not petitioning for a divorce immediately you are potentially taking a significant gamble on the future and is that really a gamble you want to take?
Anything can happen and from experience does happen – just one of example of many is the situation whereby you lose touch with your estranged and separated spouse such as to then be unable to locate that spouse thereby causing a great deal of delay and complication in getting a divorce when needed.
We cannot stress too much the benefits of taking early legal advice upon any contemplated or actual separation from your spouse – formally separating and living separate lives for a time can quickly develop into other problems and issues such as to have a knock on effect upon any subsequent proceedings issued and can lead to many unnecessary and expensive complications.
At Prism Family Law, we offer free 30 minute initial appointments so that we can discuss your requirements and case such so as to allow us to advise you on all the available options – including divorce, judicial separation and the entering into of Separation Agreements.
Should you require the services of Prism Family Law for any family law related matter please do not hesitate to contact solicitor Andrew Wraith in the first instance. Prism Family deliberately offer free initial consultations. You can call us on 0191 269 6871 or email us via [email protected]. You can also follow us on twitter, LinkedIn and Facebook for the latest news and views on family law.