Yes, your spouse may be entitled to a payout even if you separated years ago. The divorce process is not solely concerned with legally ending a marriage. A major component – arguably the most important – is reaching a financial settlement: dividing the couple’s money and assets between them in way that fairly reflects each party’s contributions and needs. Solicitors call this process financial remedies. Typically, financial settlements are designed to end financial ties between the couple as soon as possible. If they do so immediately, they are usually referred to as clean break settlements.

Without a clear settlement, even couples who have lived apart for years may have continuing claims on each other’s assets – if they can make a convincing case in court. And if the couple never actually got divorced in the first place, making a financial claim could be straightforward.

Is it important to get divorced?

Let’s take a look at a little discussed trap many couples have fallen into over the years. They married young and then separated a few years later after realising the relationship had run out of steam. Neither partner had much in the way of money or assets at the time of the split and the thought of getting divorced seemed like too much trouble or expense – so they went on with their lives, leaving a formal end to the marriage for another day.

But circumstances change and one day the issue almost inevitably catches up with them. One half of the former couple might decide they want to get married again for example – and then realise they can’t do so until they have divorced their previous spouse. One partner might enjoy business success or otherwise come into money – and then suddenly receive a letter from their estranged spouse’s solicitor arguing that their client is entitled to a payout. That financial settlement that seemed so unimportant back in the day suddenly acquires a new significance.

How much could my estranged wife or husband claim?

There is no simple, one-size-fits-all answer to this question: it depends on each couple’s individual circumstances and history. Unlike some jurisdictions, divorce law in England and Wales does not apply rigid formulas to financial remedies and the decisions made are always context-dependent.

But the family courts will consider such factors as:

  • Any assets brought into the marriage by either spouse.
  • The contributions by both to the marriage – for example, earning a salary versus running a household and looking after the children, which are also valued by the family courts.
  • The contributions made by either party to the couple’s assets and financial resources.
  • The current financial needs of each party.

In many cases, estranged spouses who separated years earlier will have different needs to those who are still divorcing. They may, for example, already be living with a new partner and so be less in need for financial support. The courts will certainly take this into consideration.

Lengthy estrangement without a divorce can affect financial entitlements in other ways too. For example, the family courts will make a distinction between the wealth held by the couple during their marriage and any wealth generated after the separation. An estranged wife, for example, would normally struggle to justify a significant payout from her husband on the basis of business success that only occurred after their separation. But they might succeed in claiming some funds on the basis of their current needs.

This is a complex issue, with multiple factors at play. If you are facing a delayed divorce, legal advice from an expert family solicitor could be a very wise move. A lawyer’s input will ensure the eventual settlement is a fair one that fully takes into account your unique personal circumstances and needs.