All you need to know about separation agreements
If you are considering separating from your partner or spouse, you may wonder if there are any legal steps you should take. In this article our family law solicitor Shamila Hussain explains more about the benefits of making a separation agreement which are important at the time of separation, but also further down the line if you decide to divorce.
What is a separation agreement?
A separation agreement is an agreement made between two people who are thinking about separation, or have already separated. The agreement sets out what both parties have agreed in terms of finances. It can be used for couples who are married, in a civil partnership, or cohabiting couples. Whatever the circumstances, both parties would need to sign the agreement.
It is important to note that a separation agreement does not end a marriage — it is simply an agreement between the two parties.
Is a separation agreement the same as a post-nuptial agreement?
Separation agreements should not be confused with post-nuptial agreements. A post-nuptial agreement is made between two people who are already married (and who intend to stay married) but want to agree on how their assets would be divided between them if they decided to separate or divorce at a later date.
A separation agreement differs as it is usually drafted where the breakdown of the relationship is imminent.
When would a separation agreement be used?
There are various situations where a separation agreement may be used. One common scenario is where the couple has married but decide they no longer wish to carry on with the relationship within the first year. They are unable to divorce as the timescale for the divorce has to be one year from the date of marriage. Therefore, they may need to settle financial matters as soon as possible, until they are able to get a divorce. An example of this is where they have bought a property together but no longer want to live together so need to sell the property and release funds prior to the divorce.
Another scenario could be where the couple wish to separate, but do not want to (or cannot) divorce for religious or personal reasons.
It should be noted however, that the only way to achieve finality and a ‘clean break’ (and avoid any future claims being made against you), is by way of a court approved order (called a consent order if made by agreement between the parties) within divorce or dissolution proceedings. Therefore, legal advice should be sought to determine which option would be best depending on the circumstances.
Is a separation agreement legally binding?
A separation agreement is not legally binding. It is simply an agreement by both parties in respect of their finances.
A consent order on the other hand is legally binding. The separation agreement can be used to agree and draw up a consent order, which would mirror the terms of the separation order once you reach the conditional order stage of the divorce proceedings.
Either party can apply to the court for financial orders and ask the court to ignore or modify some — or all — of the terms of the separation agreement. A way to overcome this is for both parties to seek independent legal advice before signing and agreeing a separation agreement, and providing each other with voluntary financial disclosure.
If both parties have taken these steps and agreed the terms of and signed the separation agreement, the court will be reluctant to move away from these terms, so long as they are fair.
Why choose a separation agreement?
Finally, separation agreements are useful as both sides can agree the terms themselves amicably. They are relatively simple to arrange, are cost-effective, and can be prepared relatively quickly. You can be assured that the court is likely to uphold the provisions so long as the above criteria are met, which means assets can be protected.
For more information on separation agreements, post-nuptial agreements or any aspect of divorce and separation law, contact our family team now on 033 3344 9600 or email [email protected]
