“The Separated Family” An Ultimate Guide to Separation

According to the Office of National Statistics, 80,057 divorces were granted in England and Wales in 2022. This is a 29.5% decrease from 2021 and the lowest number of divorces annually since 1971. 

However, this does not necessarily mean that couples are now more happily married than they were in previous years. At least in part, it is a reflection of the fact that many couples are opting to separate, without going through the  formal process of divorce to bring the marriage to and end 

There are numerous reasons why a married couple might prefer to separate rather than divorce. In some cases, a couple may be undergoing severe marital disharmony and decide to live separately for some time as a result, but want to leave the door open for a possible reconciliation in the future. 

In other cases, a couple may not yet be eligible for divorce if their marriage or civil partnership is less-than a year old. Some couples simply prefer to avoid unnecessary admin. Some couples may have religious objections to divorce. Some couples may feel that separating, rather than divorcing, preserves a sense of familial unity while dissolving their romantic relationship.

The purpose of this guide is to look at the issues surrounding couples who are married or in civil partnerships.  However, there are also issues and factors to consider when unmarried couples cohabit, have children and share assets such as properties together.  The law surrounding the finances of cohabiting couples is however different and does not, depending on the circumstances of the case, offer the same protection as that for married couples.  

• This Ultimate Guide to Separation is designed to give you an understanding of your options, if your marriage comes to an end and how to navigate discussions with your spouse regarding divorce, finances and child arrangements 
• Ensuring a Positive Outcome for Children
• Understanding Your Financial Rights
• Useful Resources
• Parting Thoughts

Considerations for Separating Couples

Many couples who wish to separate worry that they will have to go through the court. They may have heard horror stories from their friends about becoming emotionally or financially drained, or about court rulings that they consider unfair. 

Most of these fears are exaggerated, and it is important to remember that the court is there to help. However, it is also a last resort, which is best employed when coming to an agreement via another route proves impossible. We detail this below.

Correspondence with solicitors: In some cases, it is possible to reach an agreement purely through correspondence with your solicitor. Generally, this applies when both parties are in agreement about the separation, there is no need for in-person mediation or legal advice, and there is a preference for getting things done quickly and easily.  If this also includes financial arrangements, it can form the basis of a Consent Order which can be lodged at court if the parties are in agreement and will become an enforceable order of the court upon the Final Order or Decree Absolute stage of the divorce process.

Mediation: When two parties are struggling to agree to a separation, despite sharing a genuine desire to do so, mediation can be the answer. In this case, a separating couple will enlist the help of a neutral third party – often a family lawyer – who will help them talk through their differences. 

A mediator helps couples find common ground over the issues they’re struggling with (usually children, finances, or property) so that they can reach a separation agreement amicably. In addition to the fact that agreements reached through mediation often lead to more cordial long-term outcomes than going through the courts, they also take less time and cost less money.

Hybrid mediation: When a separation is less straightforward, hybrid mediation can be a good option. This might apply if a couple disagree very strongly on the terms of their separation, or if abuse or coercion were present in a relationship. In a hybrid mediation, both parties have a solicitor present for support and legal advice, and they do not share a room. Rather, the mediator moves between them, helping them come to an agreement. Other parties, such as family therapists, can also be invited to hybrid mediations as and when appropriate.

Arbitration: An arbitrator, like a mediator, is just such a neutral third party; but while a mediator uses their expertise to help couples negotiate, an arbitrator will make binding, final, decisions that both members of the separating couple agree to abide by. 

Prior to undergoing arbitration, the couple is able to define exactly what the arbitrator can rule on. For example, they may agree on what to do with their children, but disagree on what to do about their shared finances. So, in this case, they may wish to restrict the arbitrator to a decision concerning the finances alone. They will also be able to select the arbitrator (or arbitration panel) and decide when and where arbitration occurs.

Collaborative law: Collaborative law is a voluntary and private way to reach an agreement concerning children’s matters or finances. The process consists of a four-way meeting between the separated couple and their family lawyers, in which all parties work together to find a solution.

In collaborative law, the separating couple agrees to communicate openly, honestly, and respectfully; they agree to maintain confidentiality; they agree to provide full and accurate disclosure of information; they agree to work together to find a mutually acceptable solution that satisfies both parties’ interests; and they agree to not litigate in court.

In addition to the separating couple and their lawyers, collaborative law can include a number of other professionals, such as financial advisors and mental health specialists, as and when necessary.

Private hearings: In a private hearing, both parties in a separating couple will have their own legal team and appoint a private judge (an expert barrister or solicitor). 

Having heard the arguments from both sides, the judge will make their recommendation on what family courts would decide in such a case. This decision can then be submitted to the court for approval, or used as the basis for final negotiations.

Amongst the benefits of a private hearing are that the separating couple are able to select the judge themselves, meaning they can pick someone they feel has the necessary expertise and impartiality to provide a good ruling.

Going to court: If coming to a separation agreement really proves to be an intractable problem, then your last recourse is to go to court. While we would recommend exhausting the options above before exploring the court route, it is important to note that most people’s fear of court is overblown. In these instances, it is appropriate to take legal advice from a qualified family lawyer.

Ensuring a Positive Outcome for Children

In practise, it is almost always the case that the child(ren) in a separated family will end up living between two homes. The amount of time they spend in each one, however, can vary. In determining how much time a child spends at one home or the other, the overriding guiding principle must be what suits the child.

Factors that should be considered in this regard include (but are not limited to) the child’s age and the extent to which they understand the separation, where each of the parents live and where the child goes to school, and how these things are expected to change over time.

For example, if both parents end up living on the same street, then it may be easiest and fairest for the child to spend half their time at each house. However, in situations where one parent lives close to the child’s school and the other doesn’t, it may be easier for the parent that lives close to the school to take the child on weekdays, while the other parent takes them on weekends.  It is very often the case that a child will have a shared arrangement, both parents taking an equal role in their parenting and working together to ensure the child transitions as well as can be expected to the breakdown in their relationship, always with the needs and wishes of the child as the focus.

One major factor that becomes more important over time is the child’s age. The older and more mature a child is, the more likely it is that their wishes will be taken into account. 

Since there are a number of factors to take into consideration, and different families can separate under such different circumstances, what is best for the children in any given case is highly individual. However, the important thing to note is that there are a range of options and arrangements that can be put into place, all of which have children’s needs at the forefront.

The parents often agree arrangements between them, or with the assistance of a solicitor who will enter into discussions with the other parent or their solicitor to reach an agreement that can be enshrined into a parenting plan if appropriate.  If the parents cannot agree a parenting plan, then a court application can be made as a last resort. The court will then intervene, either helping the parents to reach a consent order or, when necessary, making an order of the children which prioritises their best interests. The court determines what those “best interests” are with reference to the Children Act 1989 and the Child Welfare Principles. This order can then be imposed upon the separated family to ensure a positive outcome for the children.

However, let us reiterate that court orders are a last resort – the majority of separating families will be able to come to a suitable arrangement without court intervention.

Understanding Your Financial Rights

If you are going through a separation, following the breakdown of your marriage, then getting the financial arrangements right is one of the most important things you can do. On a practical level, you need to have a financial plan in place during the separation as well as an idea of what is likely to happen longer-term; and, most importantly, you need to know what your financial rights are.

If you are not married or in a civil partnership, then your rights are limited to those areas where you can realistically make a claim to ownership. This might include a property where the mortgage is under (or jointly under) your name; it might include 50% of the capital held in any co-owned investments, bank accounts, etc. In short, your financial rights are identical to what they would be if you had no romantic or cohabiting relationship with the other party in the separation.

There is one exception to this, which is making financial provisions for any children that are involved. In these cases, depending on the arrangement for how a child will live and with whom, there may be child maintenance to be paid as governed by the Child Maintenance Service

If you are married or in a civil partnership, your financial rights are significantly greater. The Matrimonial Causes Act 1973 (and the Civil Partnership Act 2004, which mirrors it) sets out a framework of rights in the case of separation and divorce, which include claims to pensions, property, and capital. In this case, capital refers to “anything else” – stocks, shares, businesses, cash, etc.

The starting point for the division of assets that have been accumulated during marriage is a fifty-fifty split. However, family lawyers and the court will examine certain key factors as set out by section 25 of the Matrimonial Causes Act to determine whether this is appropriate in each individual case.

In cases where assets are shared unevenly between parties in a separation, the family’s circumstances dictate who gets what. This centres around whether or not each party’s needs can be met and their financial obligations fulfilled.

The factors that will weigh most heavily on the division of assets are likely to be housing and the needs of any children involved. For example, if there are children involved and one party is going to be doing the bulk of the provision for them (i.e.: the children may live with one parent for five days of the week and the other for two), this may be reflected in how the finances are split but with the understanding that both parents will need a home for their children on separation. 

Beyond this, a court may examine pre- and post-matrimonial assets (also called “non-matrimonial” assets). A pre-matrimonial asset is something that was owned in full by one member of the former couple prior to their meeting (i.e.: a woman owned a house outright before meeting her partner). A post-matrimonial asset is something that comes into the person’s ownership after separation (i.e.: a man is given a car as a gift after his separation). 

The extent to which the court will take pre and post matrimonial assets into account when considering a financial settlement or agreement will be determined by all factors of the case and whether the needs of the parties can be adequately met from the marital acquest. 

Useful Resources

There are a variety of useful resources available for people thinking about, or going through, a separation. However, we would direct you to three in particular:

Resolution is a charity that was set up by family law professionals who “wanted to take a more constructive and less adversarial approach to family disputes.” It is a highly credible source of information with a long track record of work in the public interest. Its website includes sections on splitting up, children and the law, and more.

Cafcass stands for Children and Family Court Advisory and Support Service. It is a non-departmental public body that advises family courts on what is in children’s best interests, promoting the welfare of children and families in family court. Its parent, carer or family member section includes a wealth of information that will be relevant for many separating couples.

The final resource we would suggest is a family law app, such as ourfamilywizard. These apps can set out all the arrangements that have been agreed upon, schedule doctor’s appointments or school events, store the child’s latest school reports and hold calendars that show who has the children on any given night. Some of these apps also feature “tone monitors” that check your communications and ensure healthy and non-stressful dialogue between separated parents. 

These apps are “all in one” ways to navigate the life of a separated family, and they have the potential to make issues over co-parenting much less difficult than before.

Parting Thoughts 

Whether you are married, in a civil partnership or cohabiting with a partner, separating can be a difficult process. We hope that the information contained in this guide will help you significantly – if nothing else, it should at least explain what your options are, and what you should be focused on.

Whatever the circumstances of your separation, we suggest keeping the following in mind:

• Forward planning is incredibly important. Work out in your own mind what a healthy separation looks like and how you think you can get there.
• When possible, more amicable separations are easier, quicker, less expensive, and have better long-term outcomes for all involved. If you need help from mediators, mental health specialists, or anyone else to make your separation more amicable, we suggest you take it.
• In almost all cases the two most important things in any separation are the children (if the separating couple has them) and finances. Focus on these areas first.
• Don’t let fear of court paralyse you – court is nothing to be afraid of, and is almost always avoidable anyway.

In most cases, separation agreements are straightforward. However, if your case is more complicated or has extenuating factors – or if you are simply feeling lost in the face of it all – our friendly team of family law experts are always ready and willing to discuss your situation.