Is divorce necessary when separating?

[malinkey]

I'm going through the process of separating from my husband and we are still living together until our flat sale goes through. When our property sells we are going (for an easy life on my part really) to split the proceeds 50:50.

I think it will be simpler and cheaper for us to separate and divorce on grounds of separation in two years time. Otherwise to get a divorce now I would apply on the grounds of his unreasonable behaviour and I don't think he would be very happy about this and is capable of being totally unreasonable.

We have a DS aged 3 and I want to keep things as amicable as possible for his sake. At the moment it seems like we are able to be quite friendly - I'm hoping this carries on when we are no longer living together for the benefit of DS.

My question is is there any reason why we shouldn't follow this course? Our solicitor who is dealing with the sale of our property seemed quite concerned that we aren't getting divorced and getting this all legalised. Should I be worried? Is there anything else we need to do to formalise our separation?

Thank you.

my ex and I have been separated for 3 years.
he moved out, we agreed what would happen with the kids and finances between it and we got on with our lives.
what we haven't done is get divorced - at first I think he said "lets see" because he didn't want to put move hurt on to me (fuckwit - that wouldn't have been possible), then it got towards 2 years and I thought "might as well wait until 2 years etc". Now we are just approaching 3 years I think the only reason we aren't divorced is apathy on both sides.
BUT we we able to agree things between us, we both know that neither will shaft the other etc (let me revist that when we actually do divorce!).

The problem is that without a court order tying up the finances either party can make future claims against the other in the future. For example, there would be nothing stopping your husband spending his 50% of the sale proceeds and then making a claim to share your 50% a year or so down the line. I'm not saying he will do that but it does sometimes happen.

The Catch 22 is that you cannot settle the finances until after the first part of divorce. Having said that you could make a separation agreement and tackle the final settlement a bit down the line when things are less raw.. A separation agreement isn't legally binding but as long as there is a full disclosure of assets, legal advice and the agreement is "fair" it would carry weight with the courts should there be any problem in the future.

The disadvantage is you would need to pay a solicitor to draft the separation agreement and then again for a consent order settling the finances on divorce.
However, that might be preferable and cheaper to falling out about the divorce and then having court fights on your hands.

All the above is spot on. A solicitor friend of mine separated from her husband around 10 years ago and still hasn't divorced. Horses for courses really. Just take the above into account.

Thanks for your comments. I think some sort of formal agreement would be a good idea so maybe a separation agreement would help us - if I can get my husband to agree of course. I did suggest mediation and he wasn't interested. I will try again.

It's a difficult balance - I want to be able to agree contact for DS and it will obviously be less traumatic for him if we are able to talk to each other and be reasonable about things. But I would hate to think my husband could spend all his money and come back to ask me for more! Surely he wouldn't be granted it if he's earning more than me and I'm DS's primary carer? I don't trust him 100% though it has to be said.

In England & Wales the value of assets held solely and jointly at the time of the financial settlement is matrimonial property. If your husband spends 50% of the proceeds of the property sale the value of the matrimonial property to share will be just your 50% plus any increase in it's value, other savings, pensions etc.

It is fairly common to arrange for a solicitor to hold the proceeds of selling the former matrimonial home until a formal agreement is in place.

Thanks STIDW.

So if he spends it all on buying another property that would count as an asset rather than being 'spent'?

TBH I don't think I'll have a lot left after clearing my debts for him to want to get his hands on so I probably shouldn't worry too much about that!

Anything either of you own at the time you divorce will count as an asset. So if he buys another property that counts as an asset. If you win the lottery that counts as an asset too.