Jada Pinkett Smith has announced that she and Will Smith have been separated since 2016, but have not formalised their separation with a divorce, and seemingly do not intend to do so in the near future. This raises the question of what should you do to protect yourself financially in the event that you separate from your spouse, but do not want to divorce.
I wish to separate, how can I protect myself financially?
Whilst Jada Pinkett Smith and Will Smith are based in America, this article relates to a separation and possible divorce in England and Wales.
Many people on separation do not want to take the formal step of divorce immediately. This can be for a number of reasons. However, the Court cannot approve any financial arrangement that is reached between a separated couple until the conditional order stage of a divorce.
The conditional order used to be known as a Decree Nisi. Until the Court has approved a financial agreement, it is not considered full, final and binding, and technically therefore without an approved financial Order either party to the marriage could seek to make a financial claim against the other, sometimes even years after separation.
So what can you do to protect yourself in that situation? The best possible solution, if the marriage has irretrievably broken down, is to get divorced and have a financial settlement approved by the Court. This would mean that you have certainty for the future.
Do I have to get a divorce to protect my finances?
If that is not what you want, a separation agreement could be put into place which will assist in protecting your position, particularly if legal advice is taken by both parties and other conditions complied with, but it is not technically binding.
The agreement will set out the spouses’ financial arrangements whilst they are separated, and how they intend the assets to be divided between them in the event of a subsequent divorce. Entering into a separation agreement needs the consent and co-operation of both parties to the marriage, so it depends on how amicable you are with your spouse as to whether this is a viable option. If entered into correctly, the separation agreement would become the starting point for the Court when looking to divide assets between you both in the event of a subsequent dispute, and there would need to be a good reason for a departure from its terms.
Don’t forget your Will
It is also important at this stage to make a Will which reflects the intentions that you would have in the event of your death – your separation would not have an impact on either the intestacy rules (if you do not already have a Will) or your existing Will.
If you are planning to separate and are wondering, how can I protect myself financially, please do not hesitate to contact our Family Team.