Abby is a divorce and family lawyer based in Cambridgeshire. Abby has a great deal of experience in all areas of family law having practised solely in this area since 2003.
Separating from your husband or wife is likely to change your immediate living arrangements, but it changes your legal position far less than most people expect. If you separate without divorcing, you are still married, and nothing about who owns what is settled. That cuts both ways: you do not lose your claim on the family home by moving out, and your spouse does not lose theirs by leaving you in it.
This guide covers what you are entitled to on separation in England and Wales.
The short answer. When you separate but do not divorce, neither of you is automatically entitled to a fixed share of anything. Assets stay in whoever’s name they are already in. But you both retain the right to claim against the other’s property, savings, pension, and income, and those claims remain open until a court makes a financial order dismissing them. Separation alone does not close them, no matter how many years pass.
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What am I entitled to when I separate?
There is no formula that hands you a percentage on the day you separate. What matters is what you each own, what you each need, and what a court would consider fair if you could not agree.
The family home
The family home is usually the largest asset, and one that often causes confusion.
Firstly, if a property is owned or rented in both names, you both will be entitled to remain living there.
If the house is in your spouse’s sole name, you are not without rights. As a married person, you have matrimonial home rights under the Family Law Act 1996: the right to occupy the home, and not to be evicted without a court order. Register those rights as a notice at HM Land Registry, and your spouse cannot sell or remortgage without you being made aware.
Moving out does not surrender your claim. It is a practical decision, not a legal forfeit, though leaving before anything is recorded can make your position harder. Our guide to your rights to stay in the home when you separate covers this in depth.
Savings, investments and other assets
Having an account in one person’s name does not necessarily mean they will ultimately keep the savings, investments or other assets in it. However, it can affect who has access to the money now. This is particularly important with joint accounts, where either person can usually withdraw the funds without the other’s consent. If you have concerns about access to money or assets, it is important to raise them early rather than waiting until the funds have been withdrawn.
Assets built up during the marriage are generally treated as shared, regardless of who earned or bought them. Assets you brought into the marriage or inherited may be treated differently, particularly in a short marriage, though they can still be drawn on to meet the other person’s needs.
Pensions
Pensions are significant assets in a marriage and are commonly overlooked. It is important to note that a pension is not divided simply because you have separated.
A pension can only be formally split by a pension sharing order, and that requires divorce or dissolution rather than separation alone. See our guide to how long your ex can claim your pension for further details.
Spousal maintenance
There is no automatic entitlement to spousal maintenance when you separate, and no standard rate. It is either agreed between you or ordered by a court, turning on one person’s need set against the other’s ability to pay.
Where a spouse simply stops providing support, you can apply to court for maintenance without starting a divorce, under Section 27 of the Matrimonial Causes Act 1973. Our page on spousal maintenance explains how amounts are worked out.
Arrangements for children
Both parents keep parental responsibility, and both are entitled to a relationship with their children. Neither of you needs the other’s permission to see them.
Child maintenance is handled separately from the rest of the settlement, usually through the Child Maintenance Service, and is calculated from the paying parent’s gross income. Where you cannot agree on where the children live, mediation comes before court in almost all cases.
Separation is not divorce: your financial claims stay open
This is the point most separating couples miss, and the most important one here.
While you are separated but still legally married, you remain each other’s spouse for every legal purpose that matters, including inheriting under the intestacy rules if either of you dies without a Will.
Financial claims do not expire with time. They end only when a court makes an order dismissing them, which normally happens as part of a divorce. As an example, in the case Wyatt v Vince the Supreme Court allowed a financial claim to proceed even though the couple had separated decades earlier. A long separation is not a settlement.
Assets you acquire after separating are not automatically ring-fenced either. Separate, stay married for six years and buy a house during that time, and your spouse may still have a claim against it.
Am I entitled to an equal share of my spouse’s assets?
Not automatically, though equal division is often the starting point rather than the final answer.
In long marriages where both contributed, courts commonly begin with the principle that matrimonial property should be shared equally, and that a homemaker’s contribution counts as much as an earner’s. They move away from that wherever an equal split would not meet both people’s needs.
What a court actually weighs up
A court applies the factors in Section 25 of the Matrimonial Causes Act 1973. The welfare of any child under 18 comes first, then:
- Income, earning capacity, property and other financial resources each of you has or is likely to have
- Financial needs, obligations and responsibilities each of you has or is likely to have
- The standard of living enjoyed during the marriage
- The age of each of you and the length of the marriage
- Any physical or mental disability
- Contributions to the family, including looking after the home and caring for children
- Conduct, but only where it would be inequitable to ignore it
- The value of any benefit either of you loses, such as a widow’s pension
How can I prove I am separated from my husband or wife?
There is no register of separated couples in England and Wales, and no certificate to apply for. In practice, you evidence it through what you do: separate finances, separate council tax, dated correspondence, and a clear date you both recognise as the point you separated.
Separation agreement or judicial separation?
A separation agreement, sometimes called a deed of separation, records what you have agreed about the house, the money and the children. It is not automatically binding on a court, but where both of you gave full financial disclosure and took independent legal advice, a court will usually hold you to it. That is why it is worth doing properly rather than drafting something between yourselves.
A judicial separation order is a formal court order recognising the separation without ending the marriage. It is rare and generally used by people whose religious beliefs rule out divorce. It does not allow a pension to be shared.
Neither option ends the marriage or, by itself, brings your financial claims to an end. If you divorce, a financial order can provide a clean break and formally settle your financial position. Where you have reached an agreement, this can usually be recorded in a consent order. Our guide to legal separation in the UK explains the different options in more in detail.
Six things to do in the first month after you separate
- Take advice before you move out. Leaving does not cost you your claim, but the sequence matters and it is easier to plan than to unpick.
- Register your home rights at HM Land Registry if the house is in your spouse’s sole name. One form, and no sale or remortgage can happen without you knowing.
- Take a snapshot of the finances. Statements, pension valuations, mortgage balance, salary details. Far easier now than reconstructing it in a year.
- Deal with joint accounts and joint credit. Ask the bank to require both signatures. Joint debt stays joint whatever you agree between you.
- Agree the immediate money. Who pays which bill from this month, and what happens about child maintenance.
- Record what you agree in a separation agreement, drawn up with disclosure and independent advice.
Frequently asked questions
If I leave the family home, do I lose my right to it?
No. Moving out does not give up your interest in the property or your right to claim against it. Your matrimonial home rights continue, and you can register them at HM Land Registry after you have left. It does make your position harder to evidence, so take advice on timing.
If we are separated, are we still married?
Yes, unless and until a final order of divorce is made. You remain married for inheritance, tax and financial claim purposes, including under the intestacy rules. A judicial separation order does not change this.
Does my husband have to support me financially if we separate?
There is no automatic obligation and no fixed rate. Spousal maintenance is either agreed or ordered, based on your need and their ability to pay. If your spouse stops supporting you altogether, you can apply to court for maintenance without starting divorce proceedings.
Am I entitled to my husband’s pension if we separate but do not divorce?
You keep a claim against it, but you cannot have it formally split. A pension sharing order requires a divorce or dissolution. Until then, the pension stays intact in your spouse’s name, with your claim against it still open.
Can I claim Universal Credit if I am separated but still living in the same house?
Possibly. You will be assessed as a single person only if you can show you are genuinely living separate lives rather than sleeping in different rooms. Separate finances, separate meals and separate social arrangements all help evidence this.
Our solicitors are here for you
If you need advice about separation and how your circumstances could determine what you are entitled to receive, our expert family law specialists will be able to lend their support.
Our team can work alongside you to clarify your current position, assess what will be possible, and help you with any negotiations required to achieve the outcome you are looking for.
To take advantage of a free 30-minute consultation with an expert local family law solicitor, call 0800 321 3832 or complete our quick online form.
Abby Smith
Family lawyer St Neots
This article explains the law of England and Wales. Separation and financial claims are dealt with differently in Scotland and Northern Ireland. It is general information, not legal advice on your circumstances. Written by Abby Smith, a divorce and family lawyer based in Cambridgeshire. Abby has a great deal of experience in all areas of family law having practised solely in this area since 2003. Woolley & Co, Solicitors is regulated by the Solicitors Regulation Authority (SRA number 563859) and is recognised as a leading firm by the Legal 500.
