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What happens if I’m separated but not divorced?

Updated June 2024

Separation vs divorce

Separation and divorce are terms often used interchangeably; however, they mean very different things in a legal context.

There have been numerous new articles published since Jada Smith revealed in an interview that she and her husband Will Smith have been separated for seven years but do not intend to divorce. She has stated that she promised herself that they would never divorce and has kept that promise. This appears to have surprised a lot of people, but is it really that uncommon?

Jada and Will Smith’s situation flags up what can be a common occurrence for married couples who decide to go their separate ways but, for specific reasons, decide to not legally divorce.

Choosing not to divorce

Some couples may choose to avoid divorce because of religious or philosophical beliefs. Others may not have been married long enough to be eligible for divorce, as you must be married or in a civil partnership for at least one year before getting divorced or having your civil partnership dissolved.

Married couples may be unsure whether divorce is necessary. Estranged couples may wrongly believe that if they have been separated from their partner for long enough, all financial and emotional ties have ended.

But this is not the case. Without a divorce, you are still legally married, and without a financial order, you remain financially linked.

What happens if I’m 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.

If you separate but decide not to divorce, you must consider that you are still financially tied to one another, and you are each other’s next of kin.

If, for example, you enjoy some business success, or inherit a large sum of money, your spouse is within their rights to ask for a pay-out. Without a clear financial settlement, your partner can still make financial claims, and this is relatively straightforward since there has been no legal end to your marriage.

It also means that if one of you passes away without leaving a Will, the other can inherit everything, even if they have a new partner and children as they would remain your spouse.

It’s also an important to think about your romantic future. Down the line, one of you may decide that you want to get married again. You cannot do this if you are still married, even if you have been separated for many years. You must get divorced in order to remarry. In this case, be careful of the remarriage trap! It is important that you obtain a financial ‘clean break’ order before getting remarried.

Are there any options available to me?

Other than getting legally divorced, there is one way in which you can protect yourself financially in the event of separation, through a document known as a Separation Agreement.

A Separation Agreement is a formal legal document, a contract, but it is not a court order.

It is essential that both parties receive independent legal advice and that the document is drawn up by a family lawyer.

Other conditions must be met for the agreement to hold weight, including that it is entered into voluntarily, that there is full financial disclosure and that the terms of the agreement are fair and reasonable.

If you and your ex-partner decide to get divorced at a later point, the separation agreement can be transferred into a financial consent order, which will then make it legally binding in the divorce proceedings.

There are some significant benefits to getting a separation agreement:

  • Allows you time to consider whether you want to get divorced,
  • Provides legal and financial security for both parties, and
  • It can speed up the divorce process, saving time, money, and emotional strain, should this happen at a later stage, as arrangements are already in place.

Separation Agreements can therefore be very useful, but the professional input of a family lawyer is extremely important. At Stowe Family Law, we have expert lawyers who are qualified in drawing up Separation Agreements.

So, if you find yourself in a position where you and your partner wish to separate but have reasons for wishing to avoid divorce, like Will and Jada Smith, a Separation Agreement will give you financial and practical security going forward.

Useful Links

Can I have an out of Court divorce?

Protecting your money in divorce

How to get divorced

Legal Separation

The role of the Family Court: Listen on Spotify

Taking Control of your Finances on Separation and Beyond with Lottie Kent: Listen on Spotify or Watch on YouTube

Ella is a solicitor based in Stowe Family Law's Sheffield office with experience working on cases involving Children matters, divorce and financial matters.

Contact us

As the UK's largest family law firm we understand that every case is personal.

Comment(1)

  1. Peter says:

    My wife died but we had been separated 12 years and had no contact, what do I do to dissolve my marriage legally

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