What Happens if You’re Separated But Not Divorced?

 

What Happens If You’re Separated But Not Divorced?

If you are separated but not divorced, you are still legally married. Simply living apart does not end your marriage, regardless of how long you have been separated. This can have implications for your finances, property, pensions and inheritance, so it is important to understand your position and the options available to you.

In this article we will cover the difference between separation and divorce, the dangers of separating and not divorcing and discuss the options open to you if you do not want to divorce.

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What Does Separated Mean?

Being separated generally means that you and your spouse have decided that your relationship has ended and are living separate lives, whether that means living at different addresses or, in some circumstances, remaining under the same roof. However, separation does not legally end a marriage. If you’re separated, you are still married until your divorce has been finalised. This means that if you are not divorced but living separately, you remain legally married regardless of how long you have been apart.

What Is The Difference Between A Separation and Divorce?

Unlike divorce, a separation does not put an end to a marriage. Separation allows you to live separately from your partner but remain married. Separation does not end the financial commitments or claims that each spouse may have regarding the other’s finances or assets.

This means, without legal support, no matter how long you are separated, your partner will have a claim over your finances and assets if you do not divorce.

Why Do Couples Separate But Not Divorce?

 You and your partner may decide to separate, but not officially divorce. This could be because:

• Your religious beliefs

• Worries over the cost of a divorce

• You want time and space to work out if you want to end the marriage

• You’ve been married for less than a year

Couples who decide to separate and not divorce may part amicably initially, and feel that they can trust each other, however doubts and problems can arise as time passes, circumstances change, or new relationships may form with other people. It is crucial to seek legal advice when you separate in order to protect your own best interests.

Financial And Legal Risks Of Being Separated But Not Divorced

There are a few key considerations if you are separated from your ex but remain married in the eyes of the law. Much of this is to do with the finances and assets that you have together as a married couple and as individuals.

You Remain Financially Tied To Each Other

If you inherit, experience business success, or a financial windfall, your spouse is within their rights to try and make a claim on such assets, as there has been no legal end to your marriage.

The same can be said if your spouse gets into difficulty with their finances, you may suffer too. If your spouse is sued or engages in any financial misdeeds, your assets could be at risk.

Also, any assets or pension acquired after a separation can be in the “pot” for division in a divorce if they are not safeguarded. A family law solicitor can advise on this.

Your Spouse’s Finances Can Still Affect You

If you are living apart, then you are likely unaware of your spouse’s financial situation, including earnings, spendings, investments or if they are accumulating debts. If your ex-spouse incurs debt after you sperate, you may also be responsible for paying this back out of matrimonial assets.

Financial Risks Can Increase During A Long Separation

A long separation makes it easier for your spouse to be hiding marital assets. If you have been separated for more than 12 months, it can be difficult to see what has gone missing.

Separation Could Affect A Future Financial Settlement

Your divorce settlement will be based, for the most part, on the current financial circumstances of you and your spouse. If your spouse experiences financial changes during your separation, the amount of maintenance or financial settlement you might expect to receive if you do divorce could be significantly reduced.

New Relationships Can Complicate Your Financial Position

Whilst you are still legally married, it may damage your divorce settlement negotiations if you start a relationship with someone else. Either of you, if in a new relationship, may be wasting joint marital assets by providing financial support for their new partner or purchasing property and assets with their new partner. If either spouse enters a new relationship while still married, this can make their financial circumstances more complicated if they later decide to divorce.

A Long Separation Could Affect Your Standard Of Living

During a separation, you may choose lower your standard of living. This could make it more difficult to obtain maintenance based upon your previous marital lifestyle. If you have been able to make do with less, your spouse can argue that you need less to live on than you did while the two of you were together.

If you are not ready to divorce, a separation agreement can help you record how finances, property and other arrangements will be dealt with while you remain separated.

Separated and unsure whether you need a divorce?

Speak to one of our family law solicitors about your financial position and the options available to you. Your initial consultation is free.

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What Would Happen to My Inheritance if I Was Separated and Not Divorced?

Even if you are separated, you are still married, meaning any money or other assets inherited or gifted to you during your marriage are not automatically excluded from the matrimonial financial ‘pot’.

If you wish to protect an inheritance, or if the person making the inheritance is keen for you to protect it, you should consider entering into a pre-nuptial or post-nuptial agreement with your spouse. 

Furthermore, the Rules of Intestacy do not recognise a separated couple any differently to a happily married couple. This means that if one spouse died without a Will, the other would be entitled to inherit from them as the main beneficiary of their estate, regardless of whether they were still happily married or had been estranged for years.

Fine out more on Inheritance Rights After Separation

Separation and Divorce Frequently Asked Questions

Can I buy property if I’m separated but not divorced?

When you’re married you’re automatically entitled to a share of your partner’s assets. This means you have a claim over the property, even if you’re not the legal owner. If you want to protect assets that you bring into the marriage, you should consider getting a prenuptial or postnuptial agreement.

Am I still legally married if we are separated?

Yes. Separation does not end a marriage. You remain legally married until the court grants a Final Order.

Can you be legally separated and not divorced?

When you separate and decide to not divorce, you can choose to either create a Separation Agreement or legally separate.

You can have a court order that outlines the rights and responsibilities of each spouse. It allows for the couple to continue referring to each other as their spouse while at the same time allows for the advancement of their separate lives. This is referred to as legally separating. It is advised to seek legal advice if you are considering a legal separation.

A Separation Agreement is a document that is drafted to reflect the agreement reached between you and your partner and allows you to make decisions on financial commitments or assets you both have and child maintenance of any children. Both partners sign and confirm their agreement with a family solicitor. This is not legally binding but can be used if you do decide to divorce at a later stage.

Can my spouse make financial claims if we are separated?

Yes. Separation alone does not prevent financial claims.

If I leave, will I still have to pay the mortgage?

Legally, if you and your spouse both own the property and are named on the mortgage, you will both continue to remain jointly liable for meeting any mortgage repayments, even if you choose to leave the family home.

Should I get a separation agreement?

A separation agreement can record arrangements for finances, property, and children while you remain separated. Although not automatically legally binding, it can provide clarity and reduce disputes.

What happens to pensions if we separate but do not divorce?

Pension rights are usually considered as part of a financial settlement on divorce. Simply separating does not sever potential pension claims.

Do I need a divorce if we have been separated for many years?

There is no legal requirement to divorce, but remaining married can leave financial claims open and may affect inheritance, pensions, tax matters, and future relationships.

Can we agree finances without going to court?

Yes. Many couples reach an agreement through negotiation, mediation, or solicitor-led discussions. We specialise in alternative dispute resolution (ADR) methods and will always aim to keep you out of court. However, as part of a divorce, it is advised to have any agreement formalised through a Financial Order.

Can I marry someone else if I’m separated but not divorced?

You cannot remarry someone else until a divorce with your ex-spouse is finalised.

How long can you be separated without getting divorced?

There is no set time limit on how long a married couple can remain separated without getting divorced. You could remain separated for many years and still be legally married. However, separation does not officially end your marriage, and you may still need to make arrangements regarding your finances and property. If you do not want to divorce, legal separation is another option that allows you to formally separate without ending the marriage.

Does being separated affect my Will?

Simply separating from your spouse does not have the same effect on your Will as getting divorced. If your Will leaves assets to your spouse, being separated does not by itself remove them from the Will. It is therefore important to review your Will after separation to make sure it still reflects your wishes. Divorce can affect provisions in a Will relating to a former spouse, so you should consider taking legal advice about your Will when your relationship circumstances change.

How Can a Family Law Solicitor help?

A family law solicitor can offer crucial advice when you separate, which can help you place your best interests first, and offer you the best options based on your circumstances. They can also help with drafting financial orders, settlement agreements and separation agreements.

They can also help draft post or pre-nuptial agreement if needed, and can help with advise on your options for divorce, and support by creating an asset protection strategy. If you have any children, they can help resolve any children disputes and support you through any court appearances if needed. However the team pride themselves on their alternative dispute resolution (ADR) methods and success of keeping their clients out of court.

Book a free initial consultation to discuss your circumstances with a family law specialist.

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The Howells Solicitors family law team are resolution, law society and legal 500 accredited, and rank in the top law firms in South Yorkshire for family law, and hold a 4.9 star rating on Review Solicitors for their outstanding client care.

Colin Musgrave has over 20 years’ experience helping families with private law children matters, divorce, financial settlements, separation agreements, child arrangements, cohabitation agreements and pre nuptial agreements. Colin can also Advocate for clients in court, allowing Colin to be with you every step of the way with you through the experience.

Article authored by Colin Musgrave, Divorce Solicitor

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