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What difference does it make if my marital status is separated or divorced?

Date:7 JUN 2017
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Lydia McLachlan, Associate
Brodies LLP 

According to recent news reports, divorced drivers are paying hundreds of pounds more for car insurance than married drivers. This may prompt the question of what other differences changing marital status can make and some may even question whether it is worth formalising a divorce if separation terms have been agreed.

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I am often asked by new clients whether they are 'legally separated' and by those who have signed separation agreements whether they should go ahead with a divorce. There tends to be confusion about the significance of marital status and the concept of separation. Some of this may stem from the differences between the laws of Scotland and of England and Wales.

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In Scotland, whether or not a couple are separated is a matter of fact. In most cases, there is little doubt about this and often it will be the date upon which one spouse moved out of the matrimonial home or moved into a separate bedroom. This can be contentious in some cases, however, particularly when one spouse works overseas or away from the matrimonial home.

Typically in such situations, I gather information from clients about their circumstances and attempt to determine whether separation has taken place and if so, when. Assuming that they or their spouse wish the separation to be permanent, I then tend to go through possible outcomes and suggest that we attempt to resolve the issues arising from their separation as quickly and amicably as possible.

Where agreement can be reached, the terms are usually documented in a formal contract that is signed by both spouses. These agreements are known as Separation Agreements and they normally resolve all legal matters arising between the couple as a result of their separation, other than the fact that they are married. There can be a variety of reasons for such clients wishing to remain married after signing a separation agreement. Equally, there can be a number of reasons for others wishing to divorce.

Common reasons for wanting to divorce include one or both spouses wishing to marry a new partner; one or both spouses wishing to prevent the other from benefitting financially on the death of the other (the surviving spouse may be entitled to receive pension benefits or death-in-service benefits in some circumstances); and one or both spouses wishing 'closure' or an end to the failed marriage. It is also possible that there may be financial incentives to divorce. This is the case where the spouses have agreed to enter into a pension sharing arrangement. Pension sharing can only be implemented after divorce.

I would be surprised if the possibility of increased car insurance premiums alone was to discourage clients from changing their status from married to divorced but following this recent publicity it may be one factor to be taken into account.