Do I Need a Separation Agreement?
If you are separating from your husband, wife, or civil partner and you do not plan to start divorce proceedings then you may need a separation agreement. If you are in an unmarried relationship and you are separating you may need a separation agreement. In this article, our family law solicitors look at what a separation agreement is and why you may need one.
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What is a separation agreement?
A separation agreement sets out the financial arrangements reached as part of your separation from your husband, wife, civil partner, or unmarried partner.
A separation agreement can also be referred to by family lawyers as a deed of separation.
A separation agreement is not a financial court order. That can only be made by a family judge in divorce financial settlement proceedings. A separation agreement can be converted into a binding financial court order by consent and normally without the need for anyone to attend a court hearing. That’s because the judge will consider the proposed agreed financial order and some basic information contained in a financial statement of information. The financial court order will be approved if the judge considers the order to be reasonable.
When do you need a separation agreement?
If you are separating from your spouse, civil partner, or unmarried partner you may need a separation agreement.
A family law solicitor can tell you if one is necessary. If you or your spouse or civil partner are planning to start divorce proceedings or dissolution proceedings and you have reached a financial settlement you probably will not need a separation agreement. That’s because the divorce court has the power to make a financial court order once you have received your conditional divorce order. There is therefore often no need to have both a separation agreement and a financial court order as they will say the same thing. As the financial court order is legally binding and enforceable it is preferable to have the financial court order rather than the separation agreement, if you have a choice of the 2 options.
You may need both a separation agreement and a financial court order in circumstances where:
- You do not plan to start divorce proceedings for a while but you have reached a financial agreement or
- You are planning to start divorce proceedings but you urgently need to formally record your full financial settlement because you want a house sale or business sale to go ahead before either one of you can start the divorce proceedings and ask the court, within the divorce proceedings, to make an agreed financial court order or
- You have signed a separation agreement that includes pension sharing. A pension administrator can only implement your pension agreement if there is a binding financial court order containing a pension sharing order and the divorce proceedings have been finalised
You may just need a separation agreement where:
- You are in an unmarried relationship
- You and your husband or wife or civil partner do not intend to start divorce proceedings or civil partnership dissolution proceedings. For example, you do not want to get divorced on religious grounds or for family reasons. If you change your mind and later start no-fault divorce proceedings you should convert your separation agreement into a financial court order as that gives you both greater financial security. A financial court order that contains a clean break order can stop either one of you from making any further financial claims, even if your financial or personal circumstances change in the future
What goes into a separation agreement?
A separation agreement will record the basics such as your names, addresses, whether you have children together and the status of your relationship ( married, previously living together, or civil partners) and the date your relationship began, and the date of your separation.
The separation agreement should then go on to summarise if you have both had independent legal advice from a family solicitor and your financial circumstances and then detail the financial agreement reached. Some aspects of the agreement may not be capable of change (such as how much equity you will each get when the family home is sold or how much you will pay your ex-partner when they transfer the family home to you) but other aspects may be capable of variation (such as whether spousal maintenance will be paid and for how long and the amount of child support).
Is a separation agreement binding?
Like a prenuptial agreement or postnuptial agreement, a separation agreement is not legally binding on a judge in later divorce proceedings or dissolution proceedings. However, if you signed a separation agreement after taking legal advice from a family solicitor, you were not coerced into signing the agreement, and there was financial disclosure before signing the agreement, the likelihood is if one of you tries to renege on the agreement the judge would uphold it and make a financial court order in the terms of the separation agreement.
How can OTS Solicitors help you?
OTS Solicitors can help you with all your relationship agreement needs, including:
- Separation agreements
- Cohabitation Agreements
- Parenting plans and childcare agreements
- Prenuptial agreements
- Postnuptial agreements
- Civil partnership agreements
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