Deciding to separate from your partner can be one of the most difficult decisions you will ever make. Alongside the emotional impact, there are practical questions that suddenly need answers.
Where will you live? What happens to the family home? How will you support yourself and your children? What happens to your savings, debts and pensions? And do you need to get divorced?
There is no single process for separation in England and Wales. What happens next will depend on your circumstances – including whether you are married or in a civil partnership, whether you have children, whether you own or rent your home and, importantly, whether you and your partner can reach agreements between yourselves.
Here are some of the key things to consider.
- Separation and divorce are not the same thing
One of the first things to understand is that separating does not automatically mean getting divorced.
If you are married or in a civil partnership, you can live separately while deciding what you want to do about your relationship. If you are married, you may also be able to apply for a legal separation without formally ending the marriage.
If you eventually decide to divorce, there is a separate legal process to follow. Divorce formally ends the marriage, but it does not automatically resolve your financial arrangements, so it is important to consider the two issues separately.
For couples who are not married or in a civil partnership, there is no divorce process. Instead, the focus will usually be on resolving arrangements concerning the home, finances and any children.
- Put safety first
Before making decisions about your home, finances or children, think about whether it is safe to communicate directly with your partner.
Separation can be particularly difficult where there has been domestic abuse, controlling behaviour, intimidation or threats.
If you are concerned about your safety, seek appropriate professional advice rather than feeling that you have to negotiate everything yourself. The usual approach to mediation and court proceedings can be different where domestic abuse is involved, and there are circumstances where you may not be expected to attempt mediation before applying to court.
- Where will you live?
One of the biggest immediate decisions is what happens to your home.
Depending on your circumstances, you might:
- Stay in the family home while your partner moves out
- Remain living together temporarily but lead separate lives
- Sell the property and divide the proceeds
- Have one person buy the other’s share
- If you rent, explore whether one person can take over the tenancy or whether you both need to move
There is no automatic answer. Your decision will depend on your finances, the ownership or tenancy arrangements and whether you have children.
Importantly, moving out does not automatically mean that you lose your rights in relation to the family home. Equally, staying in the property does not necessarily mean you will ultimately be entitled to keep it.
If you have a joint mortgage, moving out will not necessarily remove you from your financial responsibilities. Speak to your mortgage lender and obtain appropriate legal advice before making major decisions about the property.
- What happens to the children?
If you have children, their welfare should be at the heart of your arrangements.
You may need to agree:
- Where the children will live
- How much time they spend with each parent
- Arrangements for weekends and school holidays
- Birthdays and Christmas
- School runs and activities
- Decisions about education and healthcare
- How you will communicate about the children
Parents can often agree these arrangements between themselves, and putting an agreement in writing can be helpful.
The aim is not necessarily to divide time equally. The priority should be creating arrangements that work in the best interests of the children and reflect the family’s circumstances.
Child maintenance is a separate issue. Both parents remain financially responsible for their children, and you may be able to agree payments between yourselves. If you cannot reach an agreement, the Child Maintenance Service may be able to help.
- Get to grips with your finances
Separation can have a significant financial impact, so it is important to understand your position as early as possible.
Start gathering information about your:
Bank accounts • Savings • Investments • Mortgages • Pensions • Property • Vehicles • Loans • Credit cards • Business interests • Insurance • Household bills
Don’t overlook assets or debts simply because they are not held in joint names.
For married couples and civil partners, financial arrangements can include property, savings, investments and pensions, as well as potential maintenance payments.
Even if you and your partner are on good terms and believe you have reached a fair agreement, it can be sensible to obtain legal advice before assuming that everything is permanently resolved.
- Could a separation agreement help?
If you are separating but are not yet ready to divorce, you may consider a separation agreement.
This can record what you have agreed about issues such as where you will live, household bills, financial support, children, child maintenance, property, savings and debts.
A written agreement can provide useful clarity, but it is not automatically the same as a court order and does not necessarily provide the same level of certainty as a formal financial order following divorce.
Independent legal advice can therefore be valuable before either person signs an agreement.
- Try to resolve disagreements without going to court
Not every separation needs to end up in court.
Family mediation can help couples work through disagreements about children, money and property with the support of an independent mediator.
The mediator does not make decisions for you. Instead, they help you communicate, identify the issues and explore possible solutions.
However, mediation is not suitable for every situation. Where there is domestic abuse, coercive control, a significant power imbalance or serious concerns about the welfare of children, specialist legal advice is particularly important.
- Think about the long-term financial settlement
If you are married or in a civil partnership, reaching an informal agreement about who gets what may not provide complete legal protection.
A financial settlement can deal with issues including the family home, other property, savings, investments, pensions, debts and maintenance, as well as potential future financial claims.
Where appropriate, a solicitor can help turn an agreement into a formal consent order, giving it greater legal certainty.
If an agreement cannot be reached, the court can ultimately make a financial order.
- Don’t forget the paperwork
Separation involves more administration than many people expect.
Keep copies of important documents such as marriage or civil partnership certificates, property and mortgage documents, bank and pension statements, investment information, tax documents, payslips, loan and credit card statements and insurance documents.
You may also need to notify organisations including your mortgage lender, landlord, bank, insurance providers, HMRC, local council, benefit providers, pension providers and employer.
Your council tax position and entitlement to certain benefits may also change following separation.
What if you are not married?
The legal position can be very different for unmarried couples.
There is no legal concept of a “common law marriage” in England and Wales. Simply living together for many years does not automatically give an unmarried partner the same legal rights as a spouse.
This can be particularly important where you own property together, have made different financial contributions or have children.
If you are an unmarried couple separating, it is therefore important to establish your legal position regarding property, finances and your children.
How Marlborough Law Can Help
Take it one step at a time! Separation can feel overwhelming because you may be dealing with emotional, financial and practical decisions all at once.
You do not have to resolve everything on day one.
Start with the immediate priorities: safety, somewhere to live, arrangements for the children and access to enough money for everyday needs. You can then work through the longer-term questions about the family home, finances, pensions and whether divorce is right for you.
Where possible, sensible agreements can save time, stress and legal costs. But an arrangement that feels fair today may not provide sufficient protection for the future, particularly where significant assets or pensions are involved.
Getting early advice from a family law professional can help you understand your options before making decisions that may be difficult to undo.
