Financial Settlement After 5 Years Separation | Next Steps

Financial settlement after 5 years separation: what you need to know

This article is for information only. It does not constitute legal advice. Every case is different, and you should speak to a solicitor about your own situation before making any decisions. The Tyrer Roxburgh family law solicitors offer a fixed fee family law consultation which can be used to discuss your options.

If you have been separated from your spouse for five years or more, you may be wondering where you stand financially. Perhaps you have both moved on, built separate lives, and simply never got around to formalising anything. Or perhaps circumstances have changed and you now need to resolve things properly. Either way, reaching a financial settlement after 5 years separation is entirely possible, and in many respects the process follows the same path as any other divorce financial settlement.

However, the length of your separation does matter. It affects how the court views certain assets, how negotiations tend to run, and what options are realistically available to you. This guide explains the key points clearly.

Does separation time change how the court approaches finances?

The short answer is: not as much as many people expect. English and Welsh divorce law does not treat a five-year separation as a separate legal category that unlocks different financial rules. The court still applies the same framework under section 25 of the Matrimonial Causes Act 1973, and it still considers the same range of factors.

Those factors include the length of the marriage, each person’s financial resources and needs, any children, contributions made by each party, and the standard of living during the marriage. Separation time is not one of the listed factors. However, in practice, a long separation can still influence outcomes in meaningful ways.

How five years apart can affect a financial settlement in practice

Assets acquired after separation

One of the most significant practical effects of a long separation is the question of what counts as ‘matrimonial’ property. Assets built up during the marriage, from a family home to pension savings to investments, are generally treated as shared. Assets acquired after separation, particularly after a long gap, may carry less weight in the pot.

For example, if one spouse has spent five years building a new business, a court may well treat a portion of that as a non-matrimonial asset. Similarly, an inheritance received after the parties separated may be viewed differently to one received during the marriage. This is not automatic; however, the longer and cleaner the separation, the stronger the argument that post-separation assets should be ring-fenced.

Needs still take priority

Even so, the court’s first concern is always meeting the reasonable needs of both parties, and especially any children. Therefore, if one spouse has significantly fewer resources after the separation, the court will still look at what is fair, regardless of how long ago the marriage effectively ended. A clean break may be harder to achieve if there is a significant imbalance in financial positions.

The marriage length still counts

The length of the marriage is one of the factors the court weighs, but it is not measured as simply as many people assume. Where a couple lived together in a settled relationship that ran seamlessly into marriage, that period of cohabitation is generally added to the duration. The principle originates in GW v RW [2003] EWHC 611 (Fam), in which Nicholas Mostyn QC held that it is “unreal and artificial to treat the periods differently”, and it has since become well established. At the other end, the marital partnership is usually treated as ending when the parties separated rather than when the divorce was finalised. So a couple who married 15 years ago and separated five years ago are likely to be treated as having a marital partnership of around ten years, adjusted for any period of prior cohabitation. That is also why assets built up after separation may fall outside the shared pot.

Does a long separation make the process easier?

In some ways, yes. Couples who have been apart for a significant time often have a clearer picture of their separate financial positions. They may have already reached an informal understanding. They are sometimes more motivated to draw a firm line and move forward cleanly.

In other ways, however, a long separation can complicate things. Pensions may have grown substantially. Property values may have shifted dramatically. One party may have remarried or cohabited, which can affect certain claims. Financial disclosure, which is the formal process of both parties setting out their full financial positions, is still required. There are no shortcuts simply because of the time elapsed.

In addition, delay carries its own risks. Until a financial order is sealed by the court, claims between spouses remain technically open, and there is no point at which a marriage or those claims lapse on their own, as our guide to the myth of automatic divorce after 7 years explains. That includes claims on estates if one spouse dies. It also means one spouse could make a claim on an asset the other has built up entirely after separation.

What you need to do to reach a financial settlement after 5 years separation

Step one: get divorced first (or at the same time)

A financial settlement can only be made into a binding court order once divorce proceedings have formally started. Under the current no-fault divorce process, you can apply for a divorce and deal with finances alongside each other. You do not need to wait until the divorce is finalised, but the financial order cannot be sealed until the conditional order has been made.

Step two: financial disclosure

Both parties must provide full and frank disclosure of their financial position. This means income, assets, debts, pensions, property, and any other relevant resources. Hiding assets is a serious matter and can result in any agreement being set aside later. Even if you have been apart for years and trust each other, this step remains essential.

Step three: negotiate or mediate

Most financial settlements do not go to court. Instead, couples negotiate directly or through their solicitors, sometimes with the help of a mediator. Mediation is a process where a neutral third party helps you and your spouse reach an agreement. It is generally quicker and cheaper than going to court, and it keeps you both in control of the outcome. You can find an accredited mediator through the Family Mediation Council.

This is also the point at which working with experienced divorce financial settlement solicitors makes a real difference. A solicitor can advise you on whether an offer is fair in light of all the relevant factors, help you avoid mistakes in disclosure, and ensure any agreement properly protects you.

Step four: turn the agreement into a court order

An informal agreement, even a written one, is not legally binding on its own. You need to apply to the court to have it approved and sealed. GOV.UK sets out the basics in its guide to money and property when you divorce or separate. The document that records the terms of your financial agreement is called a consent order. This is a formal court order made by consent, meaning both parties agree to it.

Within that consent order, there may well be a clean break order. This is a provision that ends all future financial claims between the two of you. A clean break is often the goal for couples who have been separated for a long time, because it gives both parties certainty and the freedom to rebuild their financial lives without ongoing obligations to each other.

Does the court check consent orders?

Yes. A judge will review a consent order even where both parties agree. The court checks that the terms are fair and reasonable before sealing it. This is not just a rubber stamp. If the terms appear heavily weighted in one direction, the court may ask for further information or decline to approve it.

What if one person wants to remarry?

If you or your spouse plan to remarry, timing matters. Under section 28(3) of the Matrimonial Causes Act 1973, a party who remarries is barred from then applying for a financial provision order such as a lump sum order, or a property adjustment order, against their former spouse. This is known as the ‘remarriage trap’.

Importantly, what protects you is having made the application before you remarry, not having finished the settlement. If your financial claims were not preserved in the divorce application, a Form A needs to be issued before the new marriage takes place. One quirk is worth knowing: pension sharing was never brought within section 28(3), so a pension sharing application remains possible after remarriage even where other claims are lost. Our guide to the remarriage trap explains this in more detail.

Therefore, if remarriage is on the horizon for either party, taking advice on preserving your financial claims should be a priority.

Getting advice on financial settlement after 5 years separation

Every situation is different. The assets involved, the length of the marriage, each person’s needs, and the degree of cooperation between the parties all shape what a fair outcome looks like. There is no universal formula.

Tyrer Roxburgh Solicitors has significant experience in advising clients on financial settlements at every stage of separation, including where years have passed without formal resolution. We offer fixed fee family law consultations, so you can get clear initial advice without any uncertainty about cost. You can book a fixed fee consultation here.

FAQs

Can my spouse still make a financial claim after five years of separation?

Yes. Until a court order formally settles your finances, both parties retain the legal right to make financial claims against each other. This applies even after five or more years apart. In addition, claims can arise on a spouse’s estate if they die before a financial order is made. Formalising your settlement as soon as possible removes that risk.

Does a five-year separation automatically entitle me to a divorce?

Under the current law in England and Wales, you no longer need to prove separation for a set period. Since April 2022, the no-fault divorce process allows either or both parties to apply for divorce without citing separation or conduct. Five years’ separation was previously relevant under the old law, but it is no longer a ground you need to rely on.

What happens if we cannot agree on the financial settlement?

If you and your spouse cannot reach agreement through negotiation or mediation, either party can apply to the court for a financial remedy order. A judge will then decide the outcome based on all the relevant factors. Court proceedings take longer and cost more than reaching an agreed settlement, so exploring negotiation first is generally worthwhile.

Will the court take into account my new partner’s finances after separation?

The court focuses on the finances of the two spouses. However, if one spouse has a new partner who contributes to their living costs, this may affect how the court assesses that person’s needs. It does not bring the new partner’s assets into the settlement directly, but it can influence the overall picture.