When a couple separate they often have to regulate their financial affairs whether it be in relation to capital assets, income or both. 

Where a separating couple are married the Judge must have regard to a number of factors set out in  legislation and case law; applying judicial discretion to achieve a fair outcome. 

Different criteria are applied in the case of an unmarried couple which are set out in the section entitled unmarried couples.

Where there is agreement

If you can reach agreement with your spouse as to how the capital assets and family income should be distributed, the agreement can be set out in a Deed of Separation or a Consent Order.

The Deed of Separation is not legally binding and should either of you not comply with the agreement, the other will have to apply to the Court for the financial affairs to be determined by the Court.  A Judge may be guided by any agreement previously reached  (whether recorded in a deed of separation or a pre marital/pre nuptial deed ) but is not bound by it.

A Consent Order is an Order of the Court which has been agreed by the husband and wife and which has been approved by the Judge.  It is legally binding and can be enforced by the Court.  Such order cannot generally be varied to alter the overall settlement although it should be noted that maintenance payments can always be varied.

Where there is no agreement

Either the husband or the wife can make an application to the Court for the financial issues to be determined by a Judge.  These are known as Ancillary Relief proceedings.  The Court sets a timetable by which various steps must be taken to prepare the case for Hearing.  At the Hearing the Judge will decide upon the issues and make a Court Order unless agreement has been reached during the Court process.

An Order of the Court, whether by consent or otherwise, may deal with any or all of the following:

• whether the family home should be sold or whether the husband or wife should continue to live there, and if so, upon what term

• whether endowment policies or other investments should be sold or transferred to the ownership of the husband or wife

• whether the husband or wife should make a lump sum payment to the other

• whether a pension should be shared and if so how

• whether the husband or wife should pay the other maintenance/periodical payments and if so how much for how long

• what happens to a family run business

• child maintenance (see section on children)

This information is given for general reference purposes and does not constitute advice.  It is important that you seek specific legal advice from a qualifed lawyer who can investigate your circumstances and tailor their advice to your requirements.

Hudson Webb is regulated by the Solicitors Regulation Authority