A separation agreement is a written agreement between a married couple who intend to stop living together and is often seen as a way to prevent a hostile divorce at a later date. The same issues addressed during the divorce process are also addressed in a separation agreement such as financial arrangements, property and arrangements for the children. A separation agreement can protect your interests until the decision is made to file for divorce. Unlike divorce, a legal separation does not put an end to the marriage, it enables you to live separately but remain married.
Until very recently, those people with separation agreements were always warned by solicitors that they may not be binding. The simple reason for this – most separation agreements are drafted when the parties, for whatever reason, do not want to proceed immediately with the divorce process. The parties usually negotiate a settlement and this is recorded in a separation agreement, often without full disclosure taking place.
However, things may be about to change. Separation agreements may now be binding even without the approval of the Court.
The separation agreement may now act as precedence for the divorce that may follow. If you divorce after a separation and financial matters are dealt with by a Court, a judge may now be more likely to assume that since you were satisfied with the separation agreement, the agreement should stand. For that reason, it is important that you come to a separation agreement you can live with in the long term.
With ever increasing pressure for separating parties to reach agreement without the use of the Courts, it is vital to understand that separation agreements can be determined as “fair” without any detailed examination of the parties’ later financial circumstances – separation agreements are often prepared years before the divorce process is finalised and the parties’ subsequent financial positions have probably changed. In a recent High Court judgment, it was decided that the separation agreement was of magnetic importance and the most important factor, even though it was never approved by a Court when it was finalised.
Taking expert advice and guidance is particularly essential because, as the High Court has just said, even if one party later feels that they were under pressure to sign the agreement and that their former spouse failed to provide disclosure. The Court is under no duty to examine in detail the parties’ later financial circumstances in deciding whether the agreement made at separation was “fair”.
The conclusion, therefore, must be that it is essential to obtain high quality advice when negotiating and finalising a separation agreements. Separation agreements provide both parties with peace of mind knowing that the financial matters between them have been settled and at The Law House we have the necessary expertise to help separating couples come to agreement avoiding the common and sometimes devastating pitfalls.
For further information please contact Randal Buckley on 020 8956 2655 or email us at firstname.lastname@example.org.