Background

Divorce and Separation Agreements

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Setting out decisions on finances before the final stages of divorce

In her recent article, Wills, weddings and divorce my colleague Sally Power highlighted the benefits of preparing a Will during divorce proceedings to ensure that ‘what you want to happen’ does happen and is not left to chance.

In addition to drawing up or updating a Will, we advise in some cases that a Separation Agreement should also be entered into whilst the final stages of divorce are pending.

What is a Separation Agreement?

A Separation Agreement is a written agreement that typically sets out how a separating couple intends to divide their finances while they are separated and awaiting the final stages of the divorce. It is generally used as a holding position pending Decree Nisi (as parties cannot apply for a legally binding Financial Consent Order until Decree Nisi has been pronounced).

When should they be used?

It is a good idea to enter a Separation Agreement if you and your spouse have agreed on how to divide your assets but there will be a delay in you obtaining a legally binding Financial Consent Order. For example, it can be used for:

  1. Couples who wish to wait for the divorce to proceed on the fact of two years’ separation with consent, as opposed to adultery or unreasonable behaviour.
  2. Couples who have been married for less than one year and are unable to issue divorce proceedings straight away (due to the one-year rule).

If, at Decree Nisi stage, one party reneges from the original agreement; then the Separation Agreement can be shown to the Court in an attempt to enforce the original terms (see below on how the Court generally treat Separation Agreements).

Some separating couples also request a Separation Agreement when, for example, they are selling a property and wish to enter an arrangement which records their financial agreement but does not delay the sale of the property.

Will the Courts approve the agreement?

At Hunt & Coombs, we will advise whether the terms of the agreement between you and your spouse are fair and reasonable, and whether the agreement is likely to be approved by the Court once Decree Nisi has been pronounced.

Separation Agreements cannot exclude the court’s jurisdiction in financial proceedings on divorce, however, they will usually be upheld (or at least considered) if they have been carefully negotiated and both parties have sought legal advice.

If you would like to discuss the pros and cons of Separation Agreements further and/or you require advice on divorce generally, please contact our Family Team on 01733 882800 or email [email protected].


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