Legal separation and when you should get divorced - Sarah Birdsey

In this episode, Tamsin speaks to family solicitor Sarah Birdsey about legal separation and when this might be appropriate, rather than heading straight to divorce

Sarah is a specialist family solicitor and managing director at Nicholls Solicitors.

Sarah has extensive experience in all areas of private family law and is a Resolution Accredited Specialist in family finances and child arrangements. Sarah most commonly deals with divorce, financial relief and children matters. Her cases on financial relief often involve complex business and foreign assets. Sarah has good working relationships with specialist barristers, financial advisors and other experts to call upon their expertise where required.

Sarah is also regularly instructed in respect of pre and post nuptial agreements and cohabitation agreements.

Sarah has recently completed ‘what about Henry’ training with a clinical child psychologist to better understand how to support families and particularly children who are dealing with family separation.

Client’s and colleagues recognise Sarah’s personal, down to earth and sensitive approach but she is someone who is not afraid to fight for clients’ to ensure a fair outcome. Sarah is regularly recommended and has built up strong reputation in the family law field.

@sarahlbirdsey (twitter)

@sbirdseysolicitor (Instagram)

Tamsin is a Chartered Financial Planner with over 20 years experience. She works with couples and individuals who are at the end of a relationship and want agree how to divide their assets FAIRLY without a fight.

You can contact Tamsin at or arrange a free initial meeting using this link. She is also part of the team running Facebook group Separation, Divorce and Dissolution UK

Tamsin Caine MSc., FPFS
Chartered Financial Planner
Smart Divorce Ltd

P.S. I am the co-author of “My Divorce Handbook – It’s What You Do Next That Counts”, written by divorce specialists and lawyers writing about their area of expertise to help walk you through the divorce process. You can buy it by scanning the QR code…

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(The transcript has been created by an AI, apologies for any mistakes)

Tamsin Caine 0:06
Hello, and welcome to the Smart Divorce Podcast. I'm Tamsin Caine and I will be your host during this our series 6 of the podcast. We're delighted that you're joining us again, and hope that you really enjoy today's episode. During series 6 we'll be speaking to other divorce professionals who help in perhaps some of the more unusual ways. So we will be speaking to lawyers who deal with international divorce. We will be speaking child inclusive mediation to name a few. I really hope that you enjoy today's episode. Let's jump right in. Hello, and welcome to the Smart Divorce Podcast. I'm delighted to be joined this afternoon by Sarah Birdsey of Nicholls Solicitors in Timperley, which is apparently a village just south of Manchester. So hi, Sarah. How you doing?

Sarah Birdsey 1:09
Hi, Tamsin. I'm fine. Thank you. You okay?

Tamsin Caine 1:12
Yeah. Good. Thank you. Thank you for joining us this afternoon. I will let you introduce yourself in a little bit more, more detail, because your Can you tell us a bit about what you do and who you work?

Sarah Birdsey 1:26
Yes. So I'm managing director at Nichols sisters, and I'm a family lawyer here. I'm a specialist accredited member of the resolution as well, which is a group of family lawyers, which are dedicated to resolving matters amicably. And yet, we work here into the village, there's a small team of us. We're a high street practice. So we deal with wills and probate commenced in litigation family law.

Tamsin Caine 1:55
Fantastic, but your your area is, is family law, divorce and separation. Yes, fantastic. And so today, we're going to talk a little bit about about separation. In all, its numerous guises, though I thought we would start off today by talking through Separation Agreements. So can you explain to start with what one of those is, and why you might want them?

Sarah Birdsey 2:28
Yeah, so Separation Agreement, I suppose there's two forms of Separation Agreement, there's those that you would use for separating on married couples, and those that you would use when marriage proposal separating. And, and they're useful in that they can set out, you know, obviously, the the financial arrangements and other arrangements, you know, following a separation with unmarried couples, then that might be, you know, the only agreement that there is, and it's, it's basically it would be a contractual agreement that sets out if there's a joint property, for example, if that's going to be sold, what the terms are of that sale, who's going to pay the mortgage, pending the sale who's going to live in the property, how they might divide the contents and, and I'd say that's a it's a contractual agreement. So it would be binding on the parties and they'd have like a civil procedure if they needed to enforce it. But they're also useful where there's there's married couples that are separated and they maybe need to resolve the finances but need to do it sooner rather than rather than later with the divorce financial order which is a consent order that can't be approved by the court until much further down the line. So when you've got your conditional divorce order, and sometimes especially at the moment with the mortgage rates being as they are, people are keen to secure mortgages so they might want to deal with the transfer of the property or selling the property you know, a much quicker rate really, and so they used them to sort of set out what the terms are that are agreed. And then the idea is that it's then approved at a later date when when issued the divorce proceedings and it can be approved through the courts.

Tamsin Caine 4:23
Okay, so are they generally used for so let's let's take the example of a married couple to begin with, with a married couple they generally used to agree all of the different finances that you will look at separating in the actual divorce or is it does it just concentrate usually on one element?

Sarah Birdsey 4:48
It depends on the situation there they suppose you know, every situation is slightly different. Usually, I suppose ideally, you would deal with everything in this Operation agreement. But it depends, you know, it might be if there's some urgency, you know that you need to deal with the property, it may need to address that. But pensions, for example, resolving that issue can take some time, because sometimes you're waiting pension companies to provide information, you might need to get advice from the pensions experts on how best to divide those. So it might be that you need to deal with it in a bit more piecemeal way, and have the Separation Agreement addressing some of the aspects and then, you know, obviously, finalise it in due course, along with the divorce.

Tamsin Caine 5:39
Okay, are there any downside to separating things in that piecemeal way?

Sarah Birdsey 5:47
Yeah, I mean, there's still a risk Separation Agreements in that context aren't, you know, 100% binding, what the courts would say is that, as long as they're done properly, there's full disclosure. So you both know exactly what you're entering into, you know, all the assets are. And you both had legal advice on the agreement, then genuinely, it should be upheld when the divorce or distant, but the court does still have the power to make a different audit. And, you know, so if there's an element of it, that doesn't seem to be fair, or if there's a dramatic change in circumstances between doing that agreement, and the financial order being put before the court, then there is a risk that the court could say, well, actually, you know, this isn't an order. That seems right to me, I think it should be adjusted in some way. So there is that element of uncertainty. But generally, the courts say, you know, as long as it's fair, and it's been done properly, we will uphold it. And but as I say, there is still that that risk, really,

Tamsin Caine 6:55
Yeah, I guess you the risk is you each go off with your share at the house and Gone, Gone by house and clock decides that one of us should have more of the equity deal, or whatever, and then it becomes a bit trickier result.

Sarah Birdsey 7:12
Yeah, yeah, exactly, is that you know, and in that situation, you can end up then having to sell your house, it's a worst case scenario. And, you know, if you needed to adjust the shares or anything, and also, if you were gonna do it in a piecemeal way, and you sort of divided the house money, for example, and then you had your advice about your pensions, it might be that you would have divided the house differently, you might want to try and offset that pension share, you know, and deal with it that way. So it's not, I suppose it's not ideal really to deal with it being a buyer separation agreement, but the timings are such that with a with the financial order on the divorce, you know, it's quite a few months before the court can approve that order. So there are times when, you know, it can be useful.

Tamsin Caine 8:01
So let's talk a bit about timescale. Because I think that will be that will be useful thing to talk about, though, at the moment. From the point where you think, where, where you decide to file for divorce. So talk us through the timescales, if you were going for the financial consent order from the beginning, and how things might be speeded up if you were looking at a Separation Agreement and stuff.

Sarah Birdsey 8:32
So the point when you issue, the divorce, that's issued, and then there's a 20 week wait, before you can apply for your conditional order. And when we've been applying for the conditional orders, they're generally been listed a month later. So and it's not until you've got that conditional order that the court can approve your financial order. So it's a good few months, you know, before the court can approve that. And then six weeks after that, you can apply for your absolute and it's when you get in, well start causing upset anyway, the final order.

Tamsin Caine 9:13
Overwhelmed, aren't we where we've got some that are absolutes and some of that final order, then.

Sarah Birdsey 9:18
Yeah, yeah. But yeah, when you get your final order, or you decree absolutes, that's when you financials, order is binding as well. So you're looking at, you know, about seven months, seven or eight months deepen, and before that financial audit is going to be, you know, sealed and approved and final. So if you had a Separation Agreement, that could say, for example, you could do that in the early stages, and that might record that the house is going to be sold, and it's going to be split. And when you know when the time is right, you're gonna send a consent order to the court to say, you know, dismissal of the claims. You know, we've already split the house. There's nothing else to do You sort of thing, and that's important final settlement. And so it's just a matter of the court then really just putting a seal of approval on the agreement you've already done.

Tamsin Caine 10:08
Okay. And that, that that one? Yeah, the separation, a Separation Agreement? That is that's put in place in the early days, is that something that has been ratified by the court? Or is that just something that's done between the two lawyers, and therefore, it could be done in a matter of weeks?

Sarah Birdsey 10:28
Yeah, it's just something that's done between the two solicitors so it can be done relatively quickly, as long as you've got all the information there. So as long as you both do get the legal advice on it, yeah, that can be sorted out relatively quickly, really. And I usually if I can attach to it, a draft of the consent order that we would send to court down the line, so that again, there's no disagreements further down the line, when you do come to submit it. It's all it's all there. It's all clear for everybody. And, and yeah, I just feel like like you said, that extra weight as well. But it depends on whether you've agreed, you know, everything. And whether you can do that or not really,

Tamsin Caine 11:13
Absolutely. Do Separation Agreements get used where people are not ready to divorce or not? Perhaps even in some cases, for religious reasons, for example, don't want to go down the divorce rate, but want to separate and have their finances separate.

Sarah Birdsey 11:35
Yeah, yeah. So that's, that's another term that they can be used. For. Some people don't want to get divorced, they say religious reasons or otherwise. So it's a way of formalising you know, that financial division of assets, you know, in addressing, for example, who is going to pay, you know, any bills, or maybe pay any liabilities and things like that. And so, yeah, that can be done. It's just I suppose the risk is that if you separate now, and you don't divorce for many years, the court can still look at that separation agreement, you know, at that future point when you do divorce. And so it can get a bit complicated. And, you know, if it's, if it's a long time in the future,

Tamsin Caine 12:21
For clarity in England and Wales, because that's better than that, because that's the law under which you operate. And, and we operate, so it may be different in Northern Ireland, or in Scotland or other countries that you might be listening to this podcast in. Because we do have the odd listener in the US. Check out the law where you are, but in England and Wales, and it your step, financial severing isn't done, just by filing for divorce is it actually requires that financial consent order, the agreement that that everything done and dusted? Who financially separate you so it's not a question that it's, it regards, just the assets that you have on the date of separation is, is it's actually much more complex than that. Could you give us give us a little bit of the I know, this is complicated and going to be in? It depends. Broadly speaking, what was the situation if you if you separated a really long time ago, like say, 10 years ago? What, what is that situation if you were looking at assets, for a couple who write that line?

Sarah Birdsey 13:40
And so if they separated that time ago, if they divided the assets at that point, you know, there's a there's a good argument there to say, well, you know, that that should be upheld, and you know, anything since then, you know, it's post separation, it shouldn't be treated as matrimonial asset. And but the courts say they still have that power, they still have to sort of sign it off at that divorce point. So they still have to be happy that what was agreed at the time was bad. And I suppose it's just there's still that risk of if there's been a huge change in circumstances, you know, if one party is, I don't know, lost everything and is destitute. And the other party has made millions a court might say, well, actually do you know, you know, maybe there should be some some further adjustment. It really does depend on on the circumstances, really.

Tamsin Caine 14:36
It depends.

Sarah Birdsey 14:36
But as far as actually you mentioned about, you know, do you need that financial audit, there's quite, it's quite common for people to get divorced. And not do the finances have torn up, deal with them even leave property, just enjoy names and leave things in abeyance, but it's so difficult to sort out, you know, 1015 years down the line, but It just happened in all cases like that.

Tamsin Caine 15:03
Yeah, absolutely. It's definitely best to deal with it at the time. Okay, let's move on to cohabitation for a while. So cohabitation rules, laws are completely different, aren't they to marriage? So let's start off with the fallacy of common law. Yes, that's not a thing, is it?

Sarah Birdsey 15:32
No, it's definitely not a thing. But you know, is, it's a common myth, really, people still talk about common law. And, and it drives me insane when I consider new things like car insurance, or, and it's a box that you can check common law partner, it's like this doesn't exist. And so yeah, I mean, there isn't I mean, it sends lots of talk about reform, but at the moment, there's no law that governs cohabiting couples. So you're just dealing with, you know, contractual law and bandel principles, really. And so usually, when can I be seen couples separate there's, there's a property that needs to be dealt with. So you know, whether the property is being sold, or one party wants to buy the other out, you know, that can obviously be incorporated into a Separation Agreement. And the agreement can go into quite a bit of detail. So it might say, well, you know, this party wants to buy the other out, they have a period of time to do that, if they don't do it in that time. And especially with the mortgage rates being as they are, then the house is sold, and it can stipulate which states agents that goes on the market with which, you know, all of that detail so that hopefully, there's not any future disputes. You know, it's all sort of black and white. And it can set out, you know, who's going to pay the outgoings who's going to pay the liabilities, how they're going to divide contents. And even you know, who's going to look after pets that, you know, provision for things like that. So, so they're really useful to do and they're quite important in that context, you know, to have something that's formally written up so that everybody knows where they stand really?

Tamsin Caine 17:27
Absolutely. They're in in terms of just not and in ages and ages going into cohabitation. But just broadly speaking, if, if you've got practically because this quite often happens with with couples when they got divorced, and then one of them might move in with another partner. So if you're living in, in a house that belongs to somebody else in, in their in their name, so whether it's someone you're romantically involved in or not, if you're living in a property that in their name, and you have fallen out and split up, you're essentially it's still their property, isn't it? However much you might have contributed to it, however much you might have paid the bills or food while they paid the mortgage. That's still their property isn't.

Sarah Birdsey 18:23
Yeah, and there are ways that you can you can claim a beneficial interest in it, but it's quite a high threshold, you'd have to show that there was some common intention that you would, you know, get a share in this property. And when that's not been written down in any sort of formal document, then it's really one word against another. And it's rare that people have those detailed conversations where they say, okay, yeah, you you build an extension, and you can have half of the house. But, yeah, I mean, why are there why there's an express common intention, and there's a financial contribution to the actual house, in terms of, you know, a financial contribution to the mortgage or improving the value in some way, like by paying for an extension. There are circumstances where you could make a claim, but generally speaking, if someone's just living in the property, and contributing to bills and food, and they wouldn't genuinely get, you know, any, any interest in that property.

Tamsin Caine 19:25
That's a massive warning. I think of people who are moving into somebody else's property that's in their name with with no civil partnership or marriage. They're in no hope cohabitation agreement. Setting out what your plans are for how you're dealing with finances it, that can be a big risk. And I think a lot of people don't understand that we don't have the same rights as married couples. And it's a long way. You know, it's a long way off the same nights as there are couples, isn't it?

Sarah Birdsey 19:56
Yeah, yeah. It's a huge difference and Yeah, there was a very, very famous case where, you know, someone had lived in this property, but it wasn't in their name, they've lived in there for 25 years and just thought that they would, you know, get a share of it, and it just doesn't doesn't work that way. And also, you know, there's a difference in terms of pension rights, that you know, when you can have it in, you get none of those other rights that you would do if you were married. So there is a, there is a really big difference, and there's a lot of, you know, misunderstanding about it as well. Which is a concern really,

Tamsin Caine 20:34
No, absolutely. As well spot on there think think it's just really important to get get these things in writing, get them, you know, that's out legally with solicitors or, or in the case of marriage with it with a court. No separation itself. incredibly complex area. So when you're at the beginning of your divorce journey, you will probably complete financial disclosure. And I know most people, whether whether you go into court or not will, will look at completing the form A, so they can exchange their financial information with their soon to be ex spouse. And on that document, you have to document the date of separation. And this seems to be incredibly complicated to figure out what that data is. So could you give us some guidance as to what date to be used?

Sarah Birdsey 21:40
Yeah, so in some cases, I suppose it is straightforward, which is, you know, there's something that happens, one party moves out, you know, and and doesn't move back in. And that's the end of the relationship. So in that scenario, it's straightforward. Obviously, I mean, particularly at the moment, we've seen a lot of couples that separate and decide that they're going to divorce, but they have to stay in the family home, because, you know, finances don't allow them to move out. And so in that case, it can be more difficult to specify an actual date. And, and, and it can be relevant in terms of sorting out the finances, you know, if you need to specify a date for pension purposes, you know, you need to try and agree on that. And that can sometimes be disagreements and letters back and forth between lawyers about, you know, what is the correct date of separation. And so, it's always best, I suppose, to try and re on that at some stage, whether it's, you know, the first solicitor's letter, you know, stats that out, you know, that, you know, the decisions have been made, that they're separated, or, you know, they agree between the parties, you know, this is this is the date when actually, we sat down and we had that conversation, you know, that's the right date to use. But it's not straightforward. And, you know, say in some cases, it's, it's easier to pinpoint than others really. But yeah, hopefully, it's something that can be, you know, agreed between the parties is the best way to solve it.

Tamsin Caine 23:15
And in the law in England and Wales, does that date of separation have a massive impact on sort of finances? Can it? Can it swing things one way or the other?

Sarah Birdsey 23:30
And it's not, it's not a massive impact, because, you know, the financial orders and the, you know, the financial assets, the court will look at them when they come before the court. So at the point when you do the conditional consent order, or if, you know, worst case scenario, you go to court, and there's a contested hearing, the courts will look at the assets at that point. And so really, you know, the, the key is to get the finances resolved and get them finalised and approved. But it can be relevant, say in terms of when you're looking at pensions, for example, often people want to pinpoint exactly when the date of separation was so that they can try to you know, isolate them ring fence, you know, post separation payments into their pension, for example, and any post separation, debts that one party might incur. You know, the other party will be keen to make sure that there's a line drawn in the sand to say, well, that's that's your responsibility, if you've, you know, been, you know, building up debts post separation, so, so it is important, but still at the core, you know, looks at the assets when you come to divorce as well really.

Tamsin Caine 24:49
So again, if, if you've got one party who's when who following separation has taken out a huge amount of debt and then got mad with spending and you want to make sure you're the other person that the date that you use for separation is is before that, though, so that that's not included. And and that's posed, the other person might be inclined to use a later date and the things that you can do to evidence, the date that you believe that you separated? I don't know. Just thinking off the top of my head here.

Sarah Birdsey 25:24
Yeah. Well, yeah. And, yeah, I mean, I suppose, you know, we'll be, you know, just don't send an email to say, you know, this is, you know, we are now separated, get something in writing from the solicitors and try and try and agree a date as early as possible, I suppose. Instead of that, you're not then arguing about it retrospectively, because it's much harder to then recall, you know, what date you had that specific conversation, or, you know, what date, something in particular happened. And if you've got something there straightaway, whether it's a text message, an email, a letter, just something that you can pinpoint as evidence. And then if there is a dispute, and it becomes crucial, and, you know, it might be that a court has to decide what's the correct data to rely on. So if you've got something that you can pinpoint as evidence, then obviously that puts that person in a better position.

Tamsin Caine 26:20
Now, that makes that makes a lot of sense. And I guess it's slightly less important, since we had no fault to both come in, because you used to have that fear, separation and five year separation, which, I guess, made those dates even more important, whereas now, we're not, we're not necessarily dating. Oh, well, yeah. It was two, definitely two years ago, from that day, you know, you, you know, kind of having to decide that

Sarah Birdsey 26:50
Yeah, yeah, exactly. So I mean, that's sad that the divorce process massively, the new divorce system? Yeah.

Tamsin Caine 27:00
Are you finding that, that people are finding that it's easier to file and to go through that process, then? Then previously, when it when we had the the opposite should be solved? It wasn't quite like that was put into the previous system? Is it? Is it easier? And then finances are always gonna be complicated? But,..

Sarah Birdsey 27:25
yeah, yeah, the divorce process itself? Absolutely. It's a lot more streamlined, a lot more straightforward. And previously, you had to set out rounds. And you had to go into some detail as well, which didn't help people, you know, in terms of starting off on the right foot, you know, if one of them's going to blame the other. So yeah, the process is, is great. And it's so much quicker as well, in terms of using the online systems. It's a lot easier for people I think so. Yeah, it's very positive change.

Tamsin Caine 28:00
Culture on am I make it now easier for people to split up, because that's the wrong way of putting it. But once you've made that decision to divorce, I think there's no reason to prolong the agony and to make and to make people fight between the two of them any more than, than is absolutely necessary. And I'm with you that no fault divorces seems to have made a big, big difference to that. We are nearing the end of our time together. Sara, have I asked you everything that I should have asked you about separation and separation? Agree? I think so. Yeah. I can't think of anything. Anything. That's good. Do you have any hints and tips that you want to leave our listeners and viewers with?

Sarah Birdsey 28:49
I think, you know, as you said, it's better to just have everything in writing. Not everything. But you know, how to be clear about where everybody stands. And when you're moving in with someone I have a cop compensation agreement that sets out who's going to pay what, are they gonna get an interest in the property or they're not gonna get an interest in the property? And what will you do when you separate? You know, and then when you come to separate, you know, try to be clear with each other about, you know, the way forward in that regard. Which I know it's easier said than done from a lawyer. It's easier to say isn't it have a competition agreement that difficult conversations to happen in a relationship but it's important,

Tamsin Caine 29:33
They are difficult conversations to have but if you're in a place where you're happy to move in with somebody, I think those are, those are absolutely conversations that you want to be having because you don't want to get 25 years down the line and realise that the person who moved in with isn't isn't even comfortable with the having any share in the property and you believed you were gonna get half a bit. However difficult conversations are, worth having.

Sarah Birdsey 30:02
Yeah, definitely.

Tamsin Caine 30:04
Thank you so much for joining me today's era that was absolutely brilliant. And thank you for joining us. Thank you for listening. Thank you for watching and we will see you again soon

I hope you enjoyed the episode of the Smart Divorce podcast. If you would like to get in touch please have a look in the show notes for our details or go onto the website Also if you are listening on Apple podcasts or on Spotify and you wouldn't mind leaving us a lovely five star review. That would be fantastic. I know that lots of our listeners are finding this is incredibly helpful in their journey through separation divorce and dissolving a civil partnership. Also, if you would like some further support, we do have Facebook group now. It's called 'Separation divorce and dissolution UK.' Please do go on to Facebook, search up the group and we'd be delighted to have you join us. The one thing I would say is do please answer their membership questions. Okay, have a great day and take care!

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