Unfortunately, situations can arise where couples separate, but what are your options?
One option is a separation agreement.
In this article, Family Solicitor, Megan Spicer outlines everything you need to know about separation agreements.
What is a separation agreement?
A separation agreement is a legal document which sets out the intentions of two separating parties.
The agreement will detail the terms of the separation, including property and finances. It may also refer to future divorce or dissolution proceedings.
What are the advantages of a separation agreement?
It is not possible to apply to the court for divorce or dissolution if you have been married for less than one year. Separation agreements may therefore prove beneficial where the parties do not meet this requirement, or where they have not yet commenced these proceedings but wish to be clear about the division of assets and the terms of their separation in the meantime.
If you are at a stage where you are unsure whether you wish to pursue divorce or dissolution proceedings immediately, a separation agreement may be useful. This may apply, for instance, if the parties wish to take a break from the relationship.
Depending on the timeframes and assets involved, there may be tax implications which make a separation agreement useful.
An important limitation of a separation agreement is that it is not able to deal with dividing pensions and facilitating pension sharing/attachment.
Is a separation agreement legally binding?
A separation agreement is not legally binding as it is not approved by the family court in the way a financial consent order is. However, provided that certain conditions are met, the court are likely to attach weight to the agreement. These conditions include:
- Is the agreement fair and reasonable?
- Has the document been drafted correctly by a solicitor with each party obtaining their own legal advice?
- Was either party pressured into entering the agreement?
- Did the parties have knowledge of the other’s finances before reaching agreement?
- Has there been a change in the parties’ finances since the date of the agreement?
Whilst the family court will consider the above, the court is duty bound to apply the Matrimonial Causes Act 1973 and to ensure that any subsequent financial remedy order is fair to both parties. It is therefore possible that the court may alter the agreement reached when it comes to approving or imposing any financial remedy order.
In the event that the above conditions are not met, it is unlikely that the court will uphold the agreement and may choose to entirely disregard it, particularly where there is evidence of fraud or coercion.
If you would like help drafting a separation agreement, you can get in touch with a member of the team on 01202 499255 or by filling in the form.
You can read our dedicated article on financial orders here.
What is the process for obtaining a separation agreement?
The first step for the parties is to reach agreement on the contents of the document. This may include agreeing whether there will be any maintenance payments, who will remain living in the family home (or, alternatively, if it is to be sold), who will retain other properties, assets etc., with whom the children will live, and so on.
An agreement can be reached directly, through solicitors or mediation.
A solicitor will need to be instructed by one party to draft the separation agreement to reflect the agreement reached. The other party should then obtain their own independent legal advice on the contents and terms of the draft agreement.
You can find out more about our specialist mediation services here.
How long could it take to get a separation agreement?
The timeline for getting a separation agreement will depend largely upon how quickly the parties are able to reach agreement and whether mediation is a necessary step.
A separation agreement can be prepared and agreed upon in a matter of weeks, but it can take much longer if substantial negotiations are required.
Do I need a solicitor to draft a separation agreement?
Yes, you will need a solicitor to prepare the separation agreement. Without legal advice, it is unlikely that the court will apply much, if any, weight to the agreement itself.
A solicitor acting for each of you individually will:
- seek financial disclosure from both parties;
- advise as to whether the agreement is fair and, if not, provide advice as to any alternative proposals which could be put forward;
- ensure the agreement is drafted correctly and within the remits of the law; and
- answer any questions that you may have throughout the process.
Specialist separation agreement Solicitors
At Frettens, our bright team of Family experts would be happy to assist you in preparing and negotiating the terms of a separation agreement.
Alternatively, if you have a separation agreement which is already in place, we can assist you with:
- Making an application for a financial remedy order (by consent or otherwise) to make the agreement legally binding; and
- Applying to the court for a divorce or dissolution.
Call us on 01202 499255 or fill out the form at the top of this page for a free initial chat.
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