03-07-2025
Separation or divorce? The legal risks of staying married to your ex
Many couples prefer to separate but avoid making their split final with a divorce, or at least not right away.
But maintaining separated status for a prolonged period, sometimes for years after parting ways, is typically not advisable due to the financial risks, according to lawyers.
Cara Nuttall, head of family at Brabners Personal, says that choosing separation over divorce can be an emotional decision, but there can also be financial, religious or cultural reasons.
'I have also seen clients who simply didn't want the admin headache,' she says. 'Though it's important to understand not addressing financial matters at the time can make it far more complicated down the line.'
What are your options if you decide to separate but not divorce?
Nuttall is keen to stress that there is no 'one size fits all', and that an immediate legal divorce isn't always the best or most appropriate option.
And for those who do decide to separate at first, there are several different ways to do this.
'In some cases, former couples may feel an informal separation, where they just live apart and with separate finances, will suffice,' says Nuttall.
'Others choose to amicably follow the details agreed in their pre- or post-nup.
'Some may negotiate and record a more formal 'deed of separation' or a have 'judicial separation' to agree on financial and child arrangements, all without legally ending a marriage.'
Zanariah Webster, a senior associate at Stowe Family Law, says: 'If you are separated, a 'separation agreement', whilst not legally binding, can lay out your and your ex's financial obligations and expectations and can minimise - although never fully remove - risk of future claims.
'Whether you decide to separate or divorce, it is important to update your will to reflect your current relationship and intended beneficiaries.'
What are the risks of not divorcing your ex?
'Just compiling evidence can become difficult and expensive'
The decision to divorce will always be an intensely personal one but simply from a financial standpoint it has several advantages, says barrister Harry Gates of 4PB.
'The first is certainty. If you resolve your finances as you divorce, you can ask the Family Court to approve your deal in a court order, which will be binding on you both for evermore.
'Financial agreements reached between you on separation do not have the same force and can in principle be revisited in future.
'The second is clarity. If you initially separate, but then decide to divorce some years later, there is every possibility of protracted argument about how your finances have changed in the period since and how this should be taken into account.
'Just compiling the evidence in those cases can itself be difficult and expensive.
'Finally, tax. As a general rule, the longer you take to formalise the financial consequences of relationship breakdown, the more likely it is that unwelcome tax issues will arise.'
Gates says early legal advice on what best suits your circumstances is a must and likely to save both partners money in the long run. He suggests couples consider getting a shared lawyer, if appropriate.
'Ambiguity always buys a lawyer lunch'
'In my experience, it is always a terrible idea to separate and not divorce, or to divorce later down the line after years of separation,' says Ursula Rice, solicitor-advocate and managing director at Family First Solicitors.
'Separation and divorce is exhausting, so taking a break before formal proceedings begin is understandable, but the longer this goes on for, the more challenges this creates.'
Rice reiterates the point above about it becoming harder to untangle matrimonial assets, because people become more established in their lives after a year or so of separation.
This can all make a divorce process more expensive later.
'If a couple separates but doesn't divorce for five years, there are five years' worth of pension contributions to consider,' points out Rice.
'Similarly, if one partner has moved out and established their own living arrangements, it's difficult to argue that the matrimonial home needs to be sold with any urgency.'
Rice concludes: 'My simple takeaway is - if you are separated, get a divorce and do it sooner rather than later.
'Prolonging a divorce leads to ambiguity. And ambiguity always buys a lawyer lunch.'
'Anything owned during a marriage is classed as marital assets'
'If you choose to remain separated, because you are still legally married, you risk potential claims on your finances in the future, for example if you came into inheritance or won the lottery,' says Zanariah Webster of Stowe Family Law.
'Even separate bank accounts, properties and so on would still potentially be subject to division if you decided to divorce in the future, as anything owned or built during the marriage would be classed as marital assets.'
Webster warns that even legally ending your marriage or civil partnership through divorce or dissolution with a 'final order' will not sever your financial ties to your ex.
You also need a legally binding 'consent order', setting out the financial arrangements, to quash any future claims in both your life and after your death.
Cara Nuttall of Brabners Personal says: 'A common misconception is that certain financial claims and obligations automatically end at separation, when in truth some financial claims from an ex-partner remain enforceable.
'Further, post separation finances are not automatically ring-fenced either, so if you hit good fortune after the separation, it's not a given your ex can't claim against that money, just because you haven't lived together for some time.
'For some people, that risk means divorce and the associated financial order is the only option.'
> Why you should get a financial settlement at the same time as a divorce
Separation vs divorce: How to make your decision
Cara Nuttall of Brabners Personal suggests weighing up the following matters when deciding what is right for you.
1. Emotions: Do you know the marriage is over, or would a trial separation help you make the decision? Even if the marriage is at an end, are you emotionally ready for divorce at this stage?
2. Religious and cultural considerations: For some people, there are important religious or other family complexities that need to be factored in.
3. Tax: It may sound crazy, but there can be significant tax considerations, depending on your assets and your circumstances – for some people, it may make more sense to remain married, for others, delaying a settlement could make it more costly.
4. Costs: Some people avoid a divorce and financial settlement to avoid the cost, not realising that it can become more expensive to unpick it all after time has passed.
5. Trust: Not having a divorce and financial order means a settlement can still be pursued any time in the future – do you trust your partner not to come after you for more, even if they have said they won't.
