Sally asks:

My daughter and her husband are separating after three and a half years of marriage, on his instigation. During this time he has earned around £12,000 a year and she has been at home with their baby, studying for a teaching qualification.

She says she will "never" divorce him, because her promises were for ever, and she wants only an informal separation. This concerns me because now she is a qualified teacher her earning prospects are far better than his, and although they will hold no joint accounts after separation, I fear that one day he might make a claim on her to pay maintenance. He has little money sense and may get into debt quite soon. She wants to buy her own house one day - but what is to stop him claiming half of it? What should she do to guard against this?

It can often be difficult to reconcile the need for finality in financial matters against a wish to remain married. Absolute finality can only be achieved through divorce and an order within the divorce process that dismisses financial claims.

However, it is not at all unusual for divorce proceedings to be delayed, not least because the only basis for a divorce before a period of separation of two years is fault i.e. adultery or unreasonable behaviour. Many couples therefore prefer to wait. Of course, many of the same couples do want to achieve some finality in relation to their finances. 

This can largely be achieved by instructing solicitors to prepare a separation agreement (in respect of which they must each have legal advice and each must also provide information about their finances). Although a separation agreement cannot prevent a financial claim in a subsequent divorce, a court will rarely depart from what was agreed and set out in such an agreement. As a consequence, making a claim is likely to be a costly and futile exercise.

A separation agreement does of course assume that it will be possible for both your daughter and her husband to reach an agreement. If that's not the case and one of the couple wishes to make a claim but does not wish to divorce, he/she may start proceedings for judicial separation. This is a rarely used process that is similar to divorce and enables financial claims to be made. A judicial separation does not, however, end the marriage and divorce proceedings are possible later on.

It will be important for your daughter is to get specialist family law advice. You might want to look at the web site for the family law group Resolution where you will find details of specialist family solicitors in your area.

It is important for your daughter to find a way through these issues constructively.   Even though the decision has been made to separate, your daughter and her husband will remain parents of their child and so will have an ongoing co-parenting relationship.  It will be really important for the child to see her parents working together.  Your daughter might therefore want to think about resolving the issues she faces with her husband in mediation or through the collaborative family law model.  Her solicitor will be able to tell her more about these processes.

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