Despite having separated, the parties will need to try and sort out what their financial position is going to be after that separation.
In setting out the new financial arrangements, formal agreements can be put in place called Separation Agreements which would stipulate what is paid to whom by whom, and how often. It can include lump sums and periodic (eg monthly) payments.
This agreement would then be binding on both parties. Indeed, there is strong case law that says that any Separation Agreement will be upheld by the Courts if the parties do subsequently get divorced.
If there are children to the marriage it may be that you will want the agreement to reflect whatever arrangements you come to in relation to children i.e. who they will live with and when they will spend time with the other parent. Whereas without a divorce the courts cannot formally get involved in resolving any financial disputes, in relation to children disputes it can. For more information as to the approach the courts would take in relation to a dispute over children, see the section on Divorce and Children.
Our large and leading Matrimonial Law team can provide advice to you as to what is sensible and appropriate to go into a Separation Agreement, what areas should be covered, what the other party is and is not entitled to, and on how tactically you might arrive at a Separation Agreement that worked for you.
An important point for separating married couples to remember is that even though they are separated, they are still formally married in the eyes of the law, and this has wide ramifications. For example, if one "spouse” dies without a Will, their property could pass to the other spouse even though they were separated. It is important for all separating couples to consider therefore what they want to happen to their wealth (and indeed their children) when they die, and for formal documents such as a Will to be put in place that reflects their wishes.
Our Matrimonial Team work closely with our Wills and Trusts team to make sure that everything is set up as you would wish and to make sure that everything is "joined up”
Going a stage further in the separation, but still not going as far as a divorce, a couple can 'judicially separate'. This is the same legal process as a divorce - one party prepares a formal Petition together with a Statement of Arrangements in relation to any Children. The Court can then get involved and can impose Orders on separating couples if they cannot agree the financial or children arrangements. At the end of this process the parties are still married but are formally recognised as "separated” in the eyes of the law. Again a will is always advisable as if one "spouse” dies without a will, their assets will follow the intestacy rules as if the parties were still married but the other spouse had predeceased them. That could mean the assets of the deceased "spouse” passing on to people other than those the deceased would have wanted.
If you are married but are considering or wish to separate, then please do not hesitate to speak to our Matrimonial lawyers - they will listen and talk with you free of charge.
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