When does a Pause become a Full Stop? Understanding what it means to separate in family law.

Hugh Jackman and Deborra-Lee Furness

On 23 May 2025, Australia’s golden couple, Hugh Jackman and Deborra-Lee Furness announced that they had filed for divorce, almost three years after they made a joint statement publicly stating that they had elected to separate.

New York, where Jackman and Furness have applied for divorce, has a mix of “fault” and “no-fault” grounds for divorce. Two of these “no-fault” grounds require a one-year period of living apart, either under a separation agreement or under a separation decree granted by the court and living apart without either of these is not recognised as a ground for divorce, irrespective of how long you have lived separately.

With the introduction of no-fault divorce on 6 April 2022, the position in England and Wales differs considerably from those stateside, as there is no requirement to have been separated for a specific period before commencing a divorce application. 

In most cases, the date of separation will usually be agreed between the couple or may differ by mere days or weeks and will have little bearing on how the division of finances is dealt with. Separation is often marked by a clear catalytic event, such as one party moving out of the family home. However, where parties have attempted ‘trial separations’ or remained living together, the lines around when separation takes place can become hazy and can have important financial ramifications

Post-Separation Accrual

Despite the lack of separation requirement needed for a divorce, the parties’ separation date can be pertinent where one party intends to make a case that assets were acquired after the parties had separated and seeks to ring-fence the assets to exclude it from the shared matrimonial pot – this is commonly known as post-separation accrual. Proximity is important in such cases, as the closer an increase in the value of an asset is to the date of separation, the harder it will be to argue it was accrued post-separation.  Likewise, if the endeavours of post-separation accrual arise from efforts or assets which were sourced during the marriage, they are more likely to be considered matrimonial in nature, whereas assets generated solely post-separation will often be easier to ring-fence. In the case of DR v UG [2023] EWFC 68, where William Longrigg of this firm acted for the Applicant Wife, [Charles Russell Speechlys’ Family Team act for wife in securing 50% of the family’s assets - over £140m], the Respondent Husband’s argument for post-separation accrual in respect of an increase in his shareholding in a pharmaceutical business from £310,000 to nearly £275 million was unsuccessful. Mr Justice Moor’s reasoning was that the husband had not created and developed a new venture post-separation and also the risk involved in acquiring the initial shareholding had previously been secured over marital assets. The result was the Applicant Wife securing 50% of the family’s assets, in excess of £140 million.

The separation date can also be important for establishing the length of the marriage and for tax planning purposes.

The Separation Test

The general test for establishing the date of separation is when a couple no longer live together as a married couple and have chosen to live apart.  This does not require a physical separation. Many couples may have separated but cannot afford, either financially or practically, to live in different homes. The test is one of fact and requires an emotional and/or practical separation. This may include factors like lack of intimacy, sleeping in separate rooms, eating meals separately, carrying out their daily lives individually rather than jointly, or making changes to the usual financial arrangements. In the absence of agreement between the parties, the court will consider all these factors to determine the separation date, so it is important to have suitable evidence documenting these changes.

A couple may decide to formally separate but not want to apply for a divorce immediately, or indeed ever, whether it be for religious, emotional, practical, or financial reasons. In such cases, couples may wish to consider entering into a separation agreement. This document is a formal agreement setting out the terms of the separation and usually deals with arrangements for any children of the family, who will occupy the family home, how financial obligations and income needs will be met, and even arrangements for the family pet. 

Understanding the nuances of separation is crucial due to the financial implications which may arise from post-separation accruals. Whether through formal separation agreements or practical arrangements, documenting the separation process can provide some much-needed clarity, allowing individuals to safeguard their interests during divorce proceedings. The separation process is one that is deeply personal and will be influenced by a myriad of factors, including emotional, financial and practical considerations. For individuals looking to separate, the key lies in informed decision-making and thoughtful planning to allow all parties to move forward with well-needed clarity and confidence.