Can we financially "divorce" ahead of actual divorce?

[InDeNile]

Reposting from divorce board as would appreciate an opinion from someone legally qualified:

I've been separated from STBXH for nearly a year. It was a mutual decision to split, and as a result of that we're very amicable, and co-parenting our 5 year old son pretty much as well as you could imagine.

I'm still in the family home, paying the whole mortgage, and I hope to be able to partially buy STBXH out, probably with a bit of a Mesher order too (or some other form of IOU!). I've had agreement in principle from our lender that I could take on the existing mortgage on my salary alone. STBXH is renting just round the corner which has been great for sharing childcare, but he's itching to get the finances sorted so he can buy somewhere, as he resents paying £10k+ a year in rent, when he could be paying off a mortgage.

Because we're friendly, and we expect to continue to see each other almost every day for the next however-many years, neither of us wants to divorce on the grounds of unreasonable behaviour. But nor do we want to wait another 18 months (realistically) before we can move on with our separate financial futures.

We would need another discussion about the details, but from previous conversations I hope we're roughly on the same page about the asset split, pensions, life insurance etc.

In these circumstances, would it be possible/sensible to draw up a separation agreement with a lawyer now, disentangling our finances completely, and taking STBXH's name off our mortgage so that he could purchase another property? And then sort the formalities of the actual divorce and consent order at a later date...or is this a highly risky/completely inadvisable suggestion?

A potential complicating factor is that he runs his own business (as a limited company). I'm currently minded not to include that in the considerations, as it doesn't hold any tangible assets like goods or premises, its success is purely based on his expertise/intellectual property, so I view it very much as his income stream to profit from...is this a foolish position for me to hold?

Yes - I did this.
About 5 months after ex left, we had a legal separation agreement drawn up by my solicitor detailing everything we agreed (we weren't that amicable, the split was my decision) including my buying him out of the property & amount agreed, no further claims on assets, agreement we would both meet the cost of car finance until it's term and maintenance (although it was a small amount).
Basically the financial closure of the marriage.

Like you, we did not want to cite unreasonable behaviour and wanted to wait for 2 years separated.
On 1 January, I completed divorce application and included a copy of our separation agreement. It went through without solicitors and decree absolute was granted at end of July.

Up to you what to do re Company...I paid my ex a little more than half of equity of the house to stop any further claim on assets & leave me the furniture!

In fact most people are advised to agree financial issues before decree absolute - we did. However that is drawn up into a consent order which is probably what Northumberland did above, which is part of the divorce but before decree absolute, and then it is approved by the judge and sealed by the court. If it is totally unfair even if both sides agree it it will not necessarily gain the all important court approval (that court approval is what stops someone later undoing it so it is very very important you get it sealed as a "consent order " in England).

Sorry did not read properly the posts above. I thought that a separation agreement which is not a divorce consent order can be over turned easily later and it is not a guarantee your finances are sorted out. Why not just agree the finances now - apply for divorce, get decree absolute and then put in your consent order, have it sealed and then take person off mortgage etc so they can get a new mortgage and then get decree absolute,.

In English law separation agreements are contracually binding between the parties BUT not a final divorce settlement arrangement so if things change later or one party gets meaner or one wins the lottery or needs change before decree absolute/final consent order you can undo it all.

Thanks Northumberlandlass, you're the second person I've heard of who has actually done this - separation agreement long before divorce, with no horrific repercussions.

Lucysky, thanks, yes I know that separation agreements can be overturned, that's why I was asking if it was a high-risk strategy...but I think in my own circumstances, with a pretty reasonable ex, it's probably not a completely daft idea.

I'd really appreciate a legal opinion if there's anyone around...I'm going to see a solicitor this week but always good to have more than one person's view.

(I am one but not a family solicitor..... so don't go by me. If you both accept the separation agreement there is no problem a few years down the line that you draw that up into a consent order but I cannot really see why people would not want just to get on with the divorce and do it all 100% certainly. The risks are your ex is reasonable but meets the greediest woman on the planet who changes his views or one of the two of you loses a job or one wins the lottery or gets a massive pay rise or inheritance.
You can also under English law go for a "judicial separation" which is legally binding and tends to be used for those who don't for religious reasons believe in divorce and will never divorce but I do not think you intend that here)

Thanks again, no indeed judicial separation would not be the case here. It's just that to get divorced NOW we'd have to use the grounds of unreasonable behaviour, which neither of us really wants to cite the other for. The truth is that the marriage has simply "irretrievably broken down", for which we'll have to wait more than a year from now.

You're right though, that although those risks are not highly likely, if they did occur they would have a VERY high impact.

The ex meeting a women who turns his head and changes his mind being by far the most likely of your list...