What Are Separation Agreements

These agreements are a type of matrimonial (nuptial) agreement that can be entered into by a married or civil partnership couple when they are considering divorce or dissolution.

These agreements can be binding on a couple if they are entered into fairly and under the right circumstances. Some, not all, of these circumstances are that both people obtain independent legal advice and that there is full disclosure of the financial circumstances. A simple and/or informal agreement between the couple is unlikely to be considered sufficient as a potentially binding agreement.

Whilst separation agreements can provide some closure to a separating couple, they do have their limitations. These agreements are not 100% binding, a court will retain the power to decide not to follow the terms of an agreement if the Court believes it is not fair. On top of not being 100% binding, they are not the final stage in dealing with financial matters stemming from a divorce. If still agreed, in order to sever financial ties, the terms of the separation agreement will need to be turned into a formal consent order to be sent to the Court to consider whether to uphold the agreement. The drafting of the separation agreement and consent order are likely to incur additional legal costs if legal advice/support is sought.

Separation agreements also have a legal limitation as they cannot complete a transfer or division of pensions. Normally, if there is a division of pensions, this will be done by way of a pension sharing order which needs to be made by the family court as part of a final financial order.

Divorce Laws

Separation agreements were often used when the old divorce laws were in place. The old laws allowed couples to divorce on the basis of unreasonable behaviour, adultery, 2 years’ separation with consent, 5 years’ separation and desertion. Unreasonable behaviour and adultery would enable a couple to consider more immediate divorce proceedings. Where this was not applicable, and/or the couple wanted to keep things more amicable, they would have to wait at least 2 years from their separation to divorce. It was in these types of circumstances where a divorce couple may find a separation agreement helpful to essentially put a plaster over the issue of financial matters until they were able to start the divorce process.

The new divorce laws have dispensed with the old reasons for divorce and just left it for either or both of the people divorcing to have come to the conclusion that the marriage has broken down irretrievably with no chance of reconciliation.

Opinion

With divorces based on separation length now gone, I feel that so has a lot of the assistance that a separation agreement could offer.

Whilst the new divorce laws mean a divorce will take a minimum of 26 weeks, I believe that in many cases informal negotiations (aided with full & frank disclosure) leading to a consent order may be a better route to try and resolve financial matters rather than considering a separation agreement.  In my opinion, a separation agreement is likely to add to the legal costs, time and stress of resolving financial matters.  

Each case should be assessed on its own facts & figures. To find out which route may be best for your case, it is important to ascertain independent legal advice on this.

Consultation

If you are considering a divorce and/or need assistance with settling financial matters, John Hodge Solicitors can offer a free initial consultation to discuss matters. The appointment can be held in person, over the phone or online.

Free initial consultations are subject to internal checks and availability.