Anneka Rice, the TV and Radio 2 presenter has remained married to her husband, Nick Aliott, the theatre producer even though they separated 22 years ago. Ms Rice recently commented that she was happy not being divorced and that her husband remains her friend. This is in spite of the fact they both now have children from other relationships.

So what does a separated but not divorced couple need to consider?

If a couple decides to separate, but not divorce, they still need to consider a number of things including the division of their financial assets.

The Matrimonial Causes Act 1973 is the statute that governs how the court should deal with finances when a couple separates even if they do not divorce.

In essence it states that the court must take into consideration all the circumstances of the case, with top priority given to the welfare of any children. It will also strive to achieve fairness between the couple.

The court has a wide discretion as to how to distribute the assets and to consider the income. This will sometimes mean sharing the assets of the partnership equally unless needs dictate that one spouse (often the wife who might be the main carer of the children) should receive more. It is important that full financial information is provided.

What about a couple’s financial situation post-separation?

Most couples will deal with the financial situation arising from their separation and formalise the arrangement, but this may not be in the traditional format of a divorce.

The first option is that it could be done directly – a DIY written agreement stating how assets are to be divided. Having said this, it would be prudent to take independent legal advice as the agreement may not be fair and could later be overturned by a court if challenged.

A second option is a separation agreement setting out the financial terms of the separation, but with the couple remaining married.

In contrast an option which is available in divorce proceedings, but not if the couple simply separates, is a consent order.

This is an agreement between the couples made into an order, but without the requirement of them having to attend court. Finally, if there is litigation between the couple which does not settle, the court will impose an order which will make a decision about how the assets will be divided and this must be complied with.

Couples who separate should remember that if there is no document which records the terms of the separation, financial claims can remain open 10, 20 or even 30 years after separation. Many years after parting, one person could make financial demands of the other.

This risk is arguably increased if there has not been a divorce. This can be at best unsettling and at worst very time consuming, upsetting and expensive for the recipient.

The claim may succeed particularly if there are children and their needs have not been met so in those circumstances, this would be fair. However, what of the situation where one person has gone on and made a financial success of him/herself and the other seeks a share of it having not contributed towards it in anyway?

A recent case called Vince -v- Wyatt sought to address this situation and it has implications for couples who do not decide to divorce quickly after they separate.

The couple in question were married in 1981 but separated in 1984. The divorce was not finalised until 1992 when they were both receiving state benefits and had no assets.

The husband, Mr Vince, went on to establish a very successful wind power business which was said to be worth £90,000,000. Ms Wyatt brought a claim for a capital order to house herself and capitalised maintenance for life. Quite correctly in this situation, the court struck out her claim but the husband still incurred unnecessary costs and anxiety in defending it as it went to the Court of Appeal. However, the court emphasised this was rare exercise of its powers in making a strikeout order.

Final word for couples to consider…

In Anneka Rice’s situation, both she and her husband have substantial assets in their own right and the needs of their children are well met. They can both probably afford to be laidback as the likelihood is that the court would dismiss any claims brought by either of them.

However, other couples run the risk of leaving themselves open to a claim being made in the future unless they formally sign a financial agreement. A properly drafted order or agreement will provide certainty, dealing with any potential future claims and where appropriate ensuring that there is a clean break so that neither person can make a claim in the event of a change in circumstances in the future.

Richard Phillips is a partner at IBB Solicitors