What happens when you separate without divorcing?

When marriages break down, not all couples choose to divorce straight away. Some couples separate emotionally, physically and practically, but not legally. Occasionally some couples stay like this for many years and either don’t divorce or put it off for a surprisingly long time.

The upside of this is not having to go through the divorce process, but downsides include continuing to be the legal next of kin of someone you are no longer attached to and your situation causing difficulties with new partners.

Why stay married after separating?

Reasons for couples not divorcing after separation are complex and varied. For some, they simply don’t get round to it. If couples own a home together and have children, they may focus purely on sorting out selling the house and settling the children rather than the divorce process.

If couples separate due to adultery, some people feel uneasy about having that reason cited on a legal document. Similarly, some couples will prefer to wait 3 or 5 years to be able to cite separation, instead of engaging in a blame game for the cause of the marriage break down. Some couples are spooked by headline-making celebrity divorces, unfair settlements, uncontrollable divorce fees and other myths surrounding the divorce process. Whatever the reason for not going through the divorce process, it is important to make yourself aware of the legal implications.

Update your will

You probably want to think about death as much as you do divorce. However, if you are legally married and you pop your clogs intestate, your legal spouse will be your next of kin. Do you want this to happen? You may prefer that your worldly goods go to your parents, siblings, new partner, or the local cat rescue centre. When you are certain that the separation is permanent, ensure you update your will.

Consider new partners

You may not consider your legal state to be important, but new partners may feel differently. They may wish to have children with you, to marry or both. You leave them in a precarious situation by staying married to someone else. Laws in England and Wales still lack protection for cohabiting couples and this will be made worse if someone is married to someone else.

Divorce does not have to be a complex or expensive process. If you are both living separate lives and have sorted out financial and familial arrangements between you then the process will be simple.