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Is it always necessary to pursue divorce when a couple separates?

Wednesday, 20 March 2013

When a relationship breaks down, it is common for a married couple to separate. Whether it is always necessary to get a divorce depends on a variety of factors and the personal circumstances of each case.

On the one hand, mutually agreed arrangements on finances, property and children may turn out to be more than enough to put off a divorce. On the other hand, holding back on divorce will be a legal obstacle for a spouse who wishes to remarry in the future and cannot go on with their life without committing a criminal offence.

Separation Agreements

The existence and maintenance of financial and separation agreements cannot be taken for granted; circumstances can change. In this sense, the spouse who becomes unable to fulfil their obligations and responsibilities covered by such an agreement cannot be held liable. They are not legally bound by the terms and the courts cannot enforce the clauses of such agreements against them unless within the context of divorce proceedings.

Implications for Assets Post-separation

In a separation, the spouse will inevitably continue to be the next of kin. As a result, they will always have legal rights to the assets of the other spouse, even if the other sets up home with someone else. In the event of death, the spouse is considered to be the widow/widower with all the legal consequences. In other words, they are entitled to the pension, the capital or the income of the other.

It is also important to note that if one spouse acquires assets after the separation, the other may benefit from them. In subsequent divorce proceedings, the court may take into consideration these assets and decide according to the current financial situation and not to the one that existed at the time of separation, which is to the detriment of the spouse whose economic conditions have improved.

Benefits of Simple Separation

Nevertheless, there are advantages related to separation. First of all, it gives sufficient time to the couple to consider a possible reconciliation. Secondly, it provides tax, health insurance and other financial benefits for a couple.

Under a divorce, the parties no longer enjoy the legal benefits of being married such as tax filing benefits or inheritance rights. Their assets and finances are legally divided. If one party is ignorant about its financial responsibilities towards the other, then the other can easily obtain a court order forcing payment.


Neither separation nor divorce is a pleasant or stable situation. Couples who decide to put an end to their marriage and to live apart should always seek legal advice in order to secure both their children’s and their own future. If you need advice in relation to a separation or divorce, Rollingsons has experienced solicitors who can advise you. Please contact the Family Law Department by telephone on 0207 611 4848.

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