Do we need to wait 2 years before getting divorced?

We often meet with clients who are under the impression that they have to wait for 2 years to pass before they can get divorced. Clients also regularly believe that by waiting this 2 year period the divorce process itself will be quicker and cheaper. This is simply not correct and is often not the most sensible way for clients to proceed.

There are five facts of divorce in the UK:

1. Unreasonable behaviour
2. Adultery
3. Separation for a period of 2 years with consent
4. Separation for a period of 5 years with no consent required; or
5. Desertion

The divorce process and cost, remains the same whether you divorce immediately upon separation or wait until a later date.

Unfortunately, at present there is not a no-fault divorce option available in the UK. At Watson Thomas we promote a conciliatory and amicable relationship with the other party and will where possible and appropriate, ensure that divorce proceedings are drafted as mild in tone as possible to assist future negotiations. Of course, there are circumstances where a more robust approach is necessary and we will advise each client as to the appropriate way forward based upon their individual circumstances.

In some situations, where there are for example religious constraints upon the parties or other relevant factors, delaying the commencement of divorce proceedings is appropriate, however, more often than not this is not the case.

Delaying the commencement of divorce proceedings can have a negative effect on your financial position. Some examples of this are as follows:

• If a spouse was to pass away prior to divorce proceedings concluding, all of their jointly owned matrimonial property would automatically pass to the surviving spouse as although the couple were no longer continuing their relationship they remain legally married. Further, if the deceased spouse had not updated their Will, the majority of assets in their sole names would also pass to the survivor. In a situation whereby a couple have separated, this is often not how they would choose for their estate to pass in the event of their death.
• Again, in the event of death, whilst a couple remain legally married, the surviving spouse would be entitled to widows’ pension rights from the deceased’s pension. In situations whereby parties have been separated for some time this is unlikely to be the deceased’s wishes.
• Whilst parties remain married, their financial claims against each other remain open. In the event that assets are obtained after separation, the other spouse could attempt to make a claim against those assets. The spouse who had acquired the asset would have a very good argument that the asset should be considered as non-matrimonial in future negotiations however, it cannot be guaranteed that the asset could be entirely ring-fenced for that spouse.

It is therefore evident that once a decision has been made that the relationship cannot be reconciled and there are no religious factors or extenuating circumstances, commencing divorce proceedings sooner rather than later is often the most sensible way forward.

At Watson Thomas Solicitors we offer a free initial meeting to discuss all aspects of family law. If you have any questions or concerns regarding divorce, children, finances or any other issue, please contact us today to make a free, no obligation appointment.