If you are going through a separation with your partner, what comes next might seem daunting. What do you have to do? Where do you stand legally? Susannah May from our Family Law team and Charlene Rayner from our Private Client team provide some initial thoughts about the next steps after a separation from both a family law and succession law perspective.
The family law perspective
The breakdown of a relationship and separation from your spouse or partner is likely to be a challenging period to navigate emotionally and financially. However, taking professional advice from a family law specialist can help to reduce the uncertainty, protect your financial position and give you strategic direction on how to move forward positively.
It is always preferable to agree future arrangements for your finances and children jointly with your spouse or partner, if possible. Keep an open and transparent dialogue with them, as this will maintain trust and help to prevent you becoming polarised. Discuss with your spouse or partner the practicalities of how and when you will tell your family and friends about your separation.
Make a plan together about where your children will live, when each of you will spend time with them and how you will pay for their expenditure to provide them with a sense of stability. Think about how you currently meet your household outgoings and mortgage; you may choose to maintain the status quo while you adjust to becoming a two-household family as this will minimise the disruption and uncertainty.
It is sensible to be patient and allow yourself time to adjust to your new circumstances. Building a relationship or family is gradual; similarly, after separating, designing your new future (be it living independently or coparenting) also takes time. It is a priority that you take care of your emotional wellbeing, by speaking to people close to you, including a therapist if you need to. You will be more much capable and resilient in resolving financial and children matters once you have addressed any emotional issues.
Some practical steps we suggest you take include:
- Registering a home rights notice against the property you live in, if you are married and it is held in the sole name of your spouse or partner
- Changing your passwords to protect your accounts and confidential information
- Opening a bank account in your sole name (if you do not already have one) so that you are ready to manage your own finances
- Closing your joint account and dividing the funds equally, provided no direct debits are continuing to be paid from it
- If you are living on your own, applying for a sole occupancy discount on your council tax.
When you are considering, or have reached, a financial agreement with your spouse or partner, it is important you seek advice from a family law specialist. They can advise you on what a fair agreement would look like and if further negotiation is advisable. You should consider whether you want to enter into a Separation Agreement, which will regulate your finances while you are still married, or to commence divorce proceedings and obtain a Financial Order, which will deal with your matrimonial assets and income.
The Private Client perspective
After going through the emotional rollercoaster of a relationship breakdown, the thought of changing, or creating a will is perhaps a low priority. However, from a Private Client perspective, no matter how bad the separation is, or how long you have been separated, nothing changes where your will is concerned.
If you have a will and are married, you are still legally married until you divorce your spouse. Separation does not revoke or change your will. If your will leaves everything to your spouse, this will continue to have effect until you either change your will or the final order or decree absolute is issued, confirming you are divorced. At that point, your will would be read as if your former spouse had predeceased you.
If you do not have a valid will, the Intestacy Rules direct who will receive your estate. The Intestacy Rules provide for inheritance depending on your family circumstances. Separation has no effect on the Intestacy Rules. If you are married, your spouse will inherit under these rules because you are still legally married, even if you have separated.
Therefore, it is important to ensure you have an appropriate will in place following a separation to ensure you provide for those you wish to inherit.
This could be your children, your wider family or perhaps a new partner. There will also be other things to consider including tax issues regarding division of assets following a separation plus the risk of your soon-to-be former spouse making a claim against your estate if you make no provision for them on death.
These issues require careful consideration and taking professional advice at an early stage is advisable.