What am I Entitled to if I Separate from my Husband?

Our team of family lawyers in London have decades of experience acting for couples who are going through tough times. In fact, we are often asked about the details of questions such as What am I entitled to if I separate from my husband? for example, and many other questions similar to this. This article has been written to explain the ins and out of family law with a focus on separation and divorce. At one time, there was what lawyers referred to as the ‘one-third rule’, which meant that the party in need as a guideline and not as a rule of thumb could receive approximately one-third of the other parties joint assets and income.

However, as time moved on, this ‘one-third rule‘ became obsolete and decided cases came to recognise no such analysis when separating and divorcing couples came to sort out their finances. This is because a lot depended on balancing the needs and resources of the parties and making as fair a division as possible of assets whether held jointly or not, whilst at the same time having regard to the parties financial position before the breakdown. We say this because if at all possible, the idea is to place the parties as far as possible, in their financial position, had the relationship not broken down.

Separation v Divorce

It is common that married couples or civil partners may want to separate or divorce. If they separate formally, then a petition for judicial separation can be issued, and the financial remedy on such a petition would be the same as on a divorce. Why a judicial separation? Because both individuals may consider for religious or other reasons that a divorce which brings the marriage or civil partnership to an end is not appropriate, for example, but seeks a financial remedy as though they had divorced or were in the process of divorce proceedings.

What about a Separation Agreement?

As a matter of contract law, if the parties decide not to go through a court process in terms of a ‘judicial separation ‘, they can form a written agreement (a contract) between themselves on property and finance matters. This can also include provisions for any children of the family. Each party should be advised to take independent legal advice on the contents of the proposed agreement, and, in the process, there ought to be a full and honest disclosure of a parties assets and liabilities in arriving at the agreement. The remedy for breaching the agreement by one party would be a claim in the county court or high court (this depends on the value of the claim) for damages for breach of contract.

What about our Children when we Separate?

There are various methods of seeking legal assistance for children regarding their maintenance if a separation of their parents occurs. This is done through the magistrate’s court for couples that live together (cohabiting) or through the child maintenance service. Whilst cohabiting couples may not be able to make a financial maintenance claim against each other in the absence of any written agreement in place, they can approach the magistrates’ court or more comprehensively and preferably the Child Maintenance Service for the needs of their children to be clarified, where one parent refuses to make any provision for them. Our family lawyers can advise and guide you thoroughly through this process.

Does the court interfere with providing child maintenance?

Where couples are married or are in a civil partnership, the courts do not usually interfere or have jurisdiction over child maintenance. This can only happen unless, for example, the absent parent lives abroad but can interfere with an agreed order for children as part of any financial and or property settlement between the separating or divorcing parties and if an agreed order regards child maintenance has been breached.

Other circumstances where the courts can interfere is when the income of the non-resident parent or parent who simply refuses to pay is substantial, at or above the Children’Act 1989 schedule 1 upper limit ( at present) £3000 per week before income tax and national insurance contributions, or the application to the court concerns the costs of a child’s education or to support a child with a disability. Another situation where the courts can interfere is when the resident parent with whom the child lives is seeking financial provisions to provide a home for the child.

Therefore, in a judicial separation or divorce, when the court is considering the making of a property or lump sum order in favour of a child under the Children’s Act 1989, it will consider the financial needs of the child, any income capacity of the child, the child’s mental disability, or how the child is going be educated or trained.

Prenuptial Agreements

Last but not least, a word about agreements before and in contemplation of marriage – the prenuptial agreement. Suppose it is signed by both parties being fully transparent as to their assets and liabilities and having taken independent legal advice. In that case, a court where judicial separation or divorce proceedings have been instituted may order according to what was agreed. In most European countries, these agreements are binding. In England, although not binding as such, they have come to be recognised as having weight and relevance, and all things being equal, should be enforced in the family court as agreed, although it’s true to say they are not yet binding on the courts.

Our Family Lawyers in London are here to Help You

We are here to provide our professional advice and assistance to make sure you navigate the area of UK Family Law effectively. We are here to answer your questions and act for you accordingly when the time is right. If you have a question like What am I entitled to if I separate from my husband? please do not hesitate to get in conact directly to explain your case.