Quite often they will not wish to take any immediate steps to formalise the position, and they may be reluctant to see lawyers. However, if they do take this step it does not lead inevitably to a divorce or dissolution. The couple has available at least two other formal alternatives.
The first is for the parties to start judicial separation proceedings, which involves a similar court process to a divorce but, at the end of that process they will not be divorced but rather judicially separated. This used to be more common for parties whose religious or cultural beliefs did not allow them to become divorced. There are sometimes practical reasons to avoid a divorce, such as loss of spousal pension rights. The disadvantage is that the parties have to go through the same potentially expensive and time-consuming proceedings as on a divorce, but without achieving that finality. The financial order which may be agreed between them does not have the ultimate security of an order made within divorce proceedings.
The second alternative is for the parties to enter into a separation agreement which might provide for a division of their assets and provision of maintenance, if appropriate. They may also agree that if there are divorce or dissolution proceedings in the future they will be dealt with amicably and on the same terms as the separation agreement. The law in this area is relatively complicated but, for such agreements to carry weight with the court, both sides need independent legal advice and full and frank disclosure of the other’s financial position.
Separation agreements are not automatically binding on the court but if financial disclosure has been made and each party has been separately advised, they carry considerable weight with the court in subsequent divorce or dissolution proceedings. Hughes Fowler Carruthers has a great deal of experience in negotiating and drafting separation agreements.