Alternatives to divorce
Under English law there are several alternatives to divorce, including separation and separation agreements, post-nuptial agreements, and judicial separation.
Separation and separation agreements
It is possible to separate from your partner without involving the courts at all. If you simply want to live separate lives, then you can make a separation agreement for how your assets will be divided.
Such an agreement will not, however, have the benefit of court order disclosure and it may be easier for your partner to hide their true wealth. A separation agreement might also be hard to enforce if your partner does not do this willingly.
If you do separate without a legal divorce, you will not be able to re-marry. It may also have important impact on other legal rights, such as inheritance.
Under a post-nuptial agreement, spouses can agree a division of their assets without getting divorced. Sometimes this will take effect immediately – with the poorer spouse receiving transfers from the richer – whilst other times it will only take effect if they divorce.
A post-nup will give both parties clarity about their respective rights and what might happen were their relationship to end. Often it will be used by people who are considering divorce but want to work on their relationship with a key understanding of what their financial rights are.
For a post-nuptial agreement to be effective, it is important that is negotiated fairly and with a full understanding of the parties’ financial circumstances. To be sure you are getting the right deal, you will need to understand the full extent of your partner’s assets and the effect that the agreement will have.
Judicial separation is an alternative to divorce which does involve the court. It is very rare and is generally used only when both parties have a strong objection to getting divorced, for example for religious reasons.
Under a judicial separation, the court extinguishes obligations between the married parties, but allows them to remain married. This, of course, means that neither can remarry.
Upon judicial separation, the court is entitled to make the full range of financial orders which it can upon divorce.