Separated 2 years. What to sort prior to divorce?

Hi,

I haven't sought any advice re: divorce yet, but planning to get divorced on grounds of 2 years separated early next year. Does anyone know if we need to sort everything (division of the assets etc) prior to the 2 year point and then file, or wait until we have been separated 2 years exactly before we can do anything? Just looking to make sure everything is sorted in the quickest time. Thanks.

If the marriage is over it is normally much better to end it by divorce as soon as possible rather than wait
two years. There are two very good reasons for this:-

1. You will appreciate that divorce after two years' separation is based on consent. It is not uncommon when those two years have elapsed for that consent to be withheld (for all sorts of rational and/or irrational reasons). For instance, one of the most common reasons for refusing consent is that one spouse has met someone else but the other does not want him/her to be able to remarry. If that were to happen then you might have to wait until you have been separated for five years before you can obtain a divorce without consent. Five years is a very long time to wait.

2. It is important that you understand the courts decide financial issues between divorcing couples as at the time they are asked to decide and not as at the time of any separation. This means that assets acquired after separation may be taken into account. This offends most people's sense of justice but it is the way the law works and it is important to be aware of it. Therefore by not seeking a divorce now you are potentially taking a gamble on the future. Most people do not want
to take that risk.

Hi,

Thankyou for your reply. I understand this but we are waiting 2 years. We are both amicable and are only now a few months off reaching the 2 year point since we have lived in separate residences. The question is not whether we should wait 2 years (we are doing so) the question is: prior to the two years being up can we sort division of the assets etc then file for divorce at 2 years? I'm not sure if we should be sorting things now while we wait for these last few months to pass..

Like I said, this is a mistake. Possibly it will work out for you but if it does not you will rue the day you waited two years. For instance, one very common scenario which arises when the two years are up is that one spouse says to the other, 'Yes, I will consent IF you give me the shirt off your back'.

Be that as it may, if you want to finalise the financial issues arising from the marriage the best way of doing that is by obtaining a court order (which may be obtained by consent) in the divorce proceedings. The court only has jurisdiction to make a final order about finances (whether by consent or not) after decree nisi has been pronounced. It cannot make a final order before then. Therefore the divorce comes first.

You could try to settle the terms of the financial settlement now and, if you can agree those terms, you can have the terms of settlement drawn up in the form of a court order so that it can be filed with the court just as soon as you have decree nisi. If you try to do this now you will soon find out whether things are quite as amicable as you think or whether you will be met with the 'I want the shirt off your back' response.

If you do discover that you cannot agree terms of settlement now (or the terms proposed by your ex are unreasonable) then you do at least still have time to reconsider whether issuing a divorce based on two years' separation is a good idea because if you cannot agree terms of settlement now I think it is unlikely the necessary consent for divorce on the basis of two years' separation will be forthcoming when the time comes.



Edited 1 time(s). Last edit at 10/01/2020 11:05AM by David Terry.

Thankyou for your very helpful detailed reply

For what it’s worth my ex and I were very amicable with our separation, deciding on the financial split, until it came to the point of the divorce and it all went sour and what we had agreed went out of the window once she started filling in the forms.

>>For what it’s worth my ex and I were very amicable with our separation, deciding on the financial split, until it came to the point of the divorce and it all went sour and what we had agreed went out of the window once she started filling in the forms. <<

You would be surprised just how common that is. A divorce isn't really amicable unless the other spouse can be relied upon to properly formalise what has been agreed. When push comes to shove often what was thought to be an 'agreement' turns out to be nothing of the sort. The proof of this particular pudding is signing the court order which makes the financial issues final.