Is Divorce After Separation Necessary?

On the Daily Mail today, a reader has asked whether she is able to make a claim for a pension sharing order, when she and her husband have been separated for 27 years. Neither of them ever made any steps to obtain a divorce or to formally deal with the finances. Prior to separation, they had been married for 13 years.

The advice within this article has been tailored to this scenario, but it does throw light on the importance of dealing with financial matters after a separation. Given the circumstances of the case in question, it is unlikely that she would be successful in any claim against any of her husband's assets, as the parties have been managing their own finances for so long without the help or assistance of the other.

However, if an application had been made at the time of separation, or shortly afterwards, she may very well have been successful in an application for financial remedy and may even have obtained a pension sharing order.

Even if things between you and your spouse or civil partner are amicable, and you do not feel the need to take any formal steps to obtain a divorce, you do still need to consider how this may impact you financially.

If an agreement is reached between you as to how to separate the assets, but you do not wish to proceed with a divorce, you would be able to enter into a separation agreement. However, there are pros and cons to this. One of the issues with a separation agreement, is that you cannot obtain a pension sharing order through the means of a separation agreement. There is also no clean break order, which means that either you or your spouse/civil partner could decide to issue divorce proceedings and make an application for financial remedy. Whilst a separation agreement is not strictly legally binding, a Judge would consider any separation agreement if an application for financial remedy is made.

To protect you and your financial situation following a separation, it would always be advisable to consider whether it is necessary to proceed with a divorce so that you can formally deal with the financial matters and obtain an order setting out the terms of the settlement. This can include a pension sharing order if applicable, which cannot be obtained without an order from the court and without the divorce having been finalised.

This is not to say, that the moment you separate you must proceed with a divorce immediately, but if there are assets involved it is extremely important that you obtain legal advice as soon as possible after separation, so that you are aware of the options available to you.