Still married on paper? The risks of “quiet divorcing”

The Family Law considerations

1. What if one person changes their mind?

Living together post-separation may seem a perfect idea at the outset; shared finances, shared caring for children and little change. It can often be the case, however, that as time progresses, one or both people may find that their view changes. New partners, children growing older, or even a change of heart might mean that the “quiet divorce” no longer works, and one person wishes to divorce formally.

Formal divorce does not have to be the long and arduous process that many consider it will be. There are a number of options open to divorcing couples to help them preserve their co-parenting (or other) relationship. Ideally, these matters would be discussed at the point of separation, such that if one person does decide that they wish to formalise the divorce, they are both able to move forward with certainty. 

2. When is separation? What are the assets?

Often, the date of separation will be clear to the couple and therefore agreed. Couples exchange information and documentation about their finances relatively soon after that date. Assets are dealt with according to their value at the time of the relevant negotiation, and so the scope for disagreement about identity and value of assets can be limited. When financial agreement has been reached, the court is asked to consider and approve the proposed terms by sealing a financial remedy order. This order enables the couple to be certain about the position and confident that they can make decisions about their (and any children’s) future.

But what if the date of separation is not clear or agreed? This could be the case where there may be blurred lines introduced by a “quiet divorce”, as arguably, there is no physical separation. One person may feel that the marriage ended long before the other, as they had continued to live together as though there were married. This may have significant financial implications for both. If asked to consider this, the Court can take into account periods of time living together, sharing finances and spending time together as a family for the benefit of the children as relevant facts. It is also generally accepted by the Court that it can be very difficult to put an exact date on separation, as often couples attempt to save the marriage by way of discussions, relationship counselling or other assistance, such that (in the event of the difference in dates making a significant difference financially) the Court is asked to determine when the separation is likely to have taken place.

The difficulty therefore might be that financial matters may become more complicated in the event that there are periods which may be considered periods of reconciliation or they are being re-visited some years after separation. Questions may be raised about what assets are matrimonial in nature, and following that, what should happen to assets acquired or grown following separation. These may be very difficult to determine when there has not been a clear date of physical separation.

Again, a discussion at the point of deciding on a “quiet divorce” might help to lessen issues further down the line.

3. What happens to the assets and when?

One of the perceived advantages to a “quiet divorce” is that the financial matters may be delayed.

However, if one person wishes to formalise the divorce, the couple will then have to consider how their assets can be divided between them.

It may be very difficult to agree how to separate assets where the family life has, to all intents and purposes, continued as it did during the marriage. If changes have been made to the way in which finances were managed, and in the absence of clear documentation or agreement, this could lead to further disagreement.

In any case, the usual routes of non-Court dispute resolution apply, just as the Court route is available to divorcing couples. However, uncertainty or complicating factors often serve to increase the time and costs involved in reaching resolution. Whilst the “quiet divorce” may seem attractive in the first instance, it may lead to more difficulty later. 

4. What else could be put in place?

Upon a marriage or civil partnership coming to an end, divorce is not the only option. Although rarer, some couples choose to have a formal deed of separation, remaining married but with a formal deed setting out how their separation can be managed. This might work well for a “quiet divorce” as it could set out provisions for managing finances, and how a divorce might eventually be managed too. In the event that a deed of separation is considered useful, following the formalities set out by the Law Commission in respect of nuptial agreements (financial disclosure, independent legal advice for both people, an intention to be bound and the absence of coercion or duress) may help add weight to the deed, should this later be challenged by one person.

There is also the option of judicial separation, again rarer, but allowing for more formal Court remedies to be in place, whilst remaining married.

These options come with risks of their own, but in the event that a couple wishes to enact a “quiet divorce”, may provide some clarity and certainty in an otherwise undefined arrangement.

The estate planning considerations

1. Reviewing your Will

From an estate planning perspective, separation and divorce have very different consequences. Separation does not automatically change your Will. If you are separated but intend to remain legally married, it is essential that you review your Will to ensure that it reflects your current wishes.

Individuals in a marriage will often leave their entire estate to their surviving spouse and appoint their spouse as their executor. These provisions will generally remain effective following separation, unless and until your Will is updated or you subsequently divorce. It is therefore essential that if you are ‘quiet divorcing’ and have no intention of legally divorcing one another, then you review your Will to ensure it reflects your current wishes and reduce the risk of unintended outcomes.

Following a divorce, any provisions in a Will which appoint the former spouse as an executor or trustee, or which give assets to the former spouse, will be cancelled whilst the remainder of the Will will remain valid. It may be that if you have updated your Will in light of a “quiet divorce”, but later decide to formally divorce, then you may wish for these provisions to survive the divorce. In this scenario, provisions can be added in your Will so that the appointments or gifts remain valid despite the divorce.

Where there is no Will in place, a surviving spouse will also retain significant rights under the intestacy rules, regardless of how long the couple have been separated until the divorce is finalised.

Some of the questions individuals who are having a ‘quiet divorce’ might want to consider in relation to their Will are:

• Whether they still want their spouse to remain as an executor or whether someone else might now be more suitable
• What assets, if any, might they wish to leave their surviving spouse
• Whether a trust arrangement might be suitable
• What guardianship provisions are there for minor children and have these changed as a result of the “quiet divorce”

2. Reviewing your Lasting Powers of Attorney

Wills and Lasting Powers of Attorney (LPAs) are often prepared at similar times, which means that they often involve the same individuals. It is common practice for spouses to appoint each other as their attorneys.

An LPA allows the appointed attorneys to make important decisions on your behalf. Depending on the LPA that has been created, these decisions may relate to your health and welfare, or your property and financial affairs.

As with your Will, separation does not revoke your spouse’s authority to act as attorney. This means that an estranged spouse may still be able to make decisions on your behalf, including accessing bank accounts, selling property, or consent to or refusing medical treatment. It might be that a couple who is “quiet divorcing” are continuing to live shared lives and so it may be logical for this authority to continue. However, it is vital that you appoint trusted individuals to be your attorneys and that you look at updating your LPAs as relationships evolve and change.

3. Considering Property Ownership

For many couples, the family home is their most valuable asset. Property can be owned in two different ways which will impact how it may pass following your death.

Where a property is owned as joint tenants, the deceased owner’s share will pass automatically to the surviving owner, regardless of whether they are married or divorced. It is important to consider whether this joint tenancy should be severed so that you own the property as tenants in common. If you own your property as tenants in common, the surviving owner does not automatically receive your share of the property and it instead passes in accordance with your Will. This should be reviewed in conjunction with your Will to ensure that the provisions of your Will align with your intentions for the property.

This transfer of joint assets to the surviving owner will also apply to any joint bank accounts held between separated spouses. If this is not your intention, then these accounts should also be reviewed.

4. Updating your pension nominations

Pension benefits will often fall outside of the terms of your Will (though from April 2027 will be included in calculations regarding the extent of your estate for inheritance tax purposes) and instead the pension trustees will consider any pension nominations that you have left. If you have not updated your expression of wishes, then an estranged spouse may still be considered for death benefits. You should therefore review any nominations to ensure they reflect your current wishes and seek tax advice to ensure that you are leaving things in a tax efficient manner.

5. Protecting against future claims

Even where you have updated your Will, property ownership and pension nominations, your estranged spouse may still seek to benefit from your estate. A spouse who remains legally married, may still have the right to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, if they believe that reasonable financial provision has not been made for them. Even if a couple has legally divorced, but no financial order has been made (and the surviving former spouse has not remarried) then it may still be possible to make a claim against the deceased’s spouse’s estate.

Whilst the court will take into consideration a variety of circumstances and factors, remaining legally married can preserve important rights on death. As a result, couple who are quietly divorcing should consider the potential for future claims as part of their wider estate planning.