When a couple separate there are a number of obvious issues that will need to be resolved as soon as possible.
These issues include:
- arrangements for the children.
- where each party should live pending an overall agreement regarding the finances.
- who is going to pay the bills pending an overall agreement.
It is important to get advice at an early stage regarding these issues.
Key Considerations
There are also a number of further important considerations that should be made when a couple separate which are often overlooked as follows:
1. The importance of making a new Will. In our experience, it is a mis-conceived perception that it is best to delay making a Will or altering a previous Will until matrimonial difficulties have been legally resolved, usually by a divorce. In fact, it is very important not to delay making a Will until conclusion of matrimonial proceedings.
In general, if you are separated but not actually divorced, by a Final Order on divorce, should you die before your spouse, without making a Will, they will inherit the majority or all of your estate in accordance with the intestacy rules (the amount will depend on the size of your estate and/or whether you have children). If you have an existing Will, your separation will not impact the validity of that Will, and if you have left everything in that Will to your spouse, that will continue to happen if you die before a Final Order in the divorce without having made a new Will.
2. “Severing the joint tenancy” if you own a property jointly with your spouse. This is essential to ensure that your half of the property passes in accordance with the instructions given in your new Will.
3. Reviewing your lasting powers of attorney (if you have any). Until the end of divorce proceedings, your spouse could still be able to make important decisions on your behalf in relation to your property and financial affairs and/or your personal health and wealth under a registered Lasting Power of Attorney. These should therefore be reviewed as soon as possible following separation.
4. Checking the contents of any life insurance policy, pension policy and any nomination letters in order to establish whether or not you have named your spouse as a beneficiary under that policy. If you have not completed a nomination form, or if you have named your spouse as a nominated beneficiary, you may wish to complete a new form to request that your spouse does not benefit from your life insurance or your pension in the event of your death. The benefits under these investments are effectively in Trust and, therefore, your Will would have no effect on who the benefits pass to on your death.
5. Registering a home rights notice against a matrimonial home, if it is owned in the sole name of your spouse – What are home rights? | Stephens Scown
6. Changing passwords to electronic devices and/or emails that you may have shared with your spouse.
It is important to obtain advice from a matrimonial lawyer as soon as possible when separation is contemplated. In addition to the immediate practical arrangements consideration should be given to the possibility of making a new Will, severing the joint tenancy of any property and reviewing insurance, pension policies and nomination letters. We work closely with our Private Client team in advising clients who are contemplating separation, or who have separated to ensure that their position is protected as soon as possible following separation.