What is a separation agreement?
Separation agreements are contractual agreements which set out the terms of a parties’ separation, outside of the formal family court process. They are tailored to the individual couple and can address whatever issues are relevant to their situation. In general terms, this might include financial obligations and arrangements such as who will pay the rent or the mortgage, the distribution of assets, such as property or money in joint bank accounts, and arrangements for children. Separation agreements can be entered into by both married and unmarried couples.
Why might I enter into a separation agreement?
Separation agreements can be particularly useful for couples who wish to delay their formal divorce.
This utility of separation agreements has largely been reduced by the introduction of no-fault divorce, as there is no longer a requirement that couples be separated for a period of either two years or five years in order to obtain a divorce.
Nevertheless, they remain a helpful option for married couples who wish to delay their divorce for some other reason, such as the desire to wait until their children have reached 18, or for religious reasons. Marriage separation agreements allow couples to delay the formal divorce process, while still recording your intention as to the financial arrangements and therefore gaining some certainty as to their financial position in the immediate future. If the couple does decide to divorce at a later date, this agreement can speed up the process of reaching a formal financial agreement, as the parameters of a settlement have already been set.
Unmarried couples can also enter into a separation agreement. Unmarried couples are not protected in law in the same way as married couples and therefore drafting a separation agreement enables a couple to tailor the terms of their separation to the facts of their individual situation and to record an agreement in respect of the ownership of joint assets, for example, such as a car or joint bank accounts.
In both instances, entering into a separation agreement enables you and your partner to mutually agree the terms and to reduce any confusion or unfairness which might arise in the future.
Are separation agreements legally binding?
It is important to be aware that there is no such thing as a legal separation agreement, as they are not legally binding.
They are contractual documents which record your intention at the point that you enter into them. They may therefore be persuasive to a judge, if your matter later came before the court.
A court could, however, decline to uphold the financial arrangements as laid out in a separation agreement if, for example, it became clear that the agreement did not meet the needs of one of the parties involved, or one party was not given the opportunity to seek independent legal advice. Our specialist separation agreement solicitors would be able to advise you as to whether you would be able to challenge the terms of an existing agreement.
The only way for a married couple to reach a legally binding arrangement is by way of a financial remedy order, which can be reached either by consent or by order of the court. In a similar way to a marriage separation agreement, this document could be tailored to match your individual circumstances but would be enforceable by the courts if it later came into dispute.
If you are considering entering into a separation agreement, or want advice on how best to formalise your financial arrangements on separation, our specialist family law solicitors would be able to provide advice on separation and the other options available to you.
Could my partner still make a claim?
Due to the fact that they are not legally binding, separation agreements do not preclude the other party from making a claim for financial relief within the family court.
The right to do so remains open until the arrangements have been formalised by way of financial order, whether reached by consent or by order of the court.
It is also important to remember that, if you are married, assets accrued since separation could be included in the marital pot if required to meet the other parties’ needs, regardless of the contents of a separation agreement.
How can we help you with separation agreements?
There are a number of ways in which our specialist family solicitors can help you.
Firstly, our family separation solicitors in London can provide you with advice on whether or not it would be beneficial for you to enter into a separation agreement, given your particular circumstances.
On the basis of this advice, if you choose to enter into a separation agreement, our separation solicitors in London can advise you on the terms of your proposed deal and advise you as to whether or not it is a fair agreement. Taking advice from a specialist solicitor also increases the likelihood that your agreement will be upheld in court. If it is drawn up properly and both parties have obtained legal advice, it would be much harder for the other party to argue in court that they don’t have to stick to the terms in the agreement. Once this agreement has been finalised, they can then draft the legal separation agreement on your behalf to ensure that it is as robust as possible.
If it is decided that a separation agreement is not the best option for you, our solicitors would be available to explain what other options remain open to you and to support you through the divorce and financial remedy process if necessary.