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Separation Agreements

 

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Collaborative Law

Many separating spouses choose to deal with financial matters and even future divorce proceedings by entering into a Separation Agreement (sometimes called a Deed of Separation).  Unmarried separating couples can do the same.

 

For married couples, a Separation Agreement enables them to deal with finances if there is no imminent prospect of divorce.  The agreement will record what is to happen regarding property and finance and can even incorporate an agreement that proceedings for divorce will take place later, if desired.  The intention is to settle those issues straight away so that when the marriage is dissolved at some stage in the future there will be no need to argue about finances.  Upon a subsequent divorce, the court is asked to approve the agreement by way of a ‘Consent Order’.

 

In order to put a Separation Agreement in place there has to be agreement between the parties about all of the financial arrangements.  If there is disagreement on some issues, the court cannot be asked to settle the argument. 

 

Separation Agreements do have some negatives, for example:

 

  1. They are not legally binding in the Family Courts.  If and when divorce proceedings are issued the court still has the power to make property and financial orders.  The agreement cannot prevent the court from exercising those powers if one party wants to depart from the terms of the agreement.  So if for example one of the parties wants some more money, over and above that set out in the agreement then they could still ask the court to set aside the agreement and make a totally fresh Order.

 

However, the court is only likely to interfere with the arrangements if it becomes clear that:

 

  • the arrangements were completely unfair to one party to begin with; or
  • it is satisfied that a party has not been given the opportunity to take independent legal advice; or
  • one of the parties has not disclosed the full extent of his or her assets; or
  • there has been a substantial unforeseen change in circumstances.  

 

2.   Pension companies will not be able to deal with any pension sharing arrangements  unless they are set out in a formal Court Order following divorce proceedings.

 

Despite these drawbacks a Separation Agreement remains a very useful tool if there is a good measure of agreement and trust between the separating parties and a willingness to be open about finances. 

 

 

For more information please contact:
Bells Solicitors Limited.   Registered in England and Wales no. 07827988.   Authorised and regulated by the Solicitors Regulation Authority.   SRA number 569030.   VAT registration number 137595285