A Separation Agreement is a document drawn up when you want to stop living together as a couple, setting out the arrangements you wish to make regarding finances, property and /or any children.
Some couples may not be legally able to get divorced if they have not been married the required 12 months or, alternatively, they may wish to delay starting divorce proceedings, for example, if they would prefer to separate and wait until two years have passed so that they can divorce or dissolve their civil partnership based on 2 years’ separation.
A Separation Agreement is not legally binding but if the Agreement has been drawn up correctly, entered into voluntarily by both parties with the benefit of legal advice with full and frank disclosure from both sides and the terms of the agreement are fair and reasonable it is unlikely that a Judge would interfere to change it.
Ideally, a Separation Agreement is any agreement that provides for a couple to live separately. A formal drawn up agreement can deal with a wide variety of issues, such as the agreement to live apart; the payment of maintenance by one party to another; how the matrimonial home will be dealt with, for example, whether that involves a sale of the property, or one party buying out the other, or transferring the tenancy of the property in a given timescale. The agreement can also deal with savings, investments, furniture and any debts. Issues such as with whom the children live and arrangements for the non-resident parent to see their children can also be included in any agreement, as can any matters involving any business assets.
No agreement regarding the financial aspects of a divorce or civil partnership dissolution can be legally binding until such time as it has been presented to the Court and approved by the Judge in the form of a financial consent order. This can only be done after or at the same time as an application is made to the Court to make the divorce /civil partnership dissolution final.
Pros and cons for having a Separation Agreement
Advantages:
- An early agreement made regarding the financial settlement can, providing everything goes according to plan, provide a solid basis for the ultimate financial consent order that should be presented to the Court for the approval of the Judge once the divorce or dissolution is ready to be made final
- The Agreement can focus the minds of both parties at what can be a particularly difficult, emotional and challenging time
Disadvantages:
- A Separation Agreement is not legally binding and does not have the same effect as a financial consent order approved by the Judge at the time the divorce or dissolution is made final. A Separation Agreement cannot prevent either party from making an application to the Court at some future date when divorce or civil partnership dissolution is underway for something different from that that is included in the Separation Agreement.
- The parties’ finances and situation generally can alter significantly from the time the Separation Agreement was entered into and the time when the divorce/ dissolution process is started. If the divorce proceedings are commenced at the time of separation, a financial consent order can be put in place, bringing with it certainty and finality for the couple’s finances and potentially may well cost the parties less in the long run.
- There is no closure. Even with a professionally drawn up Separation Agreement, the couple will still have to revisit their financial settlement in the future, when they will need to make arrangements for the financial matters to be embodied in a consent order approved by the Court.
If you wish to discuss this matter in more detail give RJT Solicitors a call on 01942 409154 for a free no obligation chat.
