Where civil partners or married couples separate, they may wish to reach a formal agreement regarding financial issues and arrangements for their children without going through divorce proceedings.
A separation agreement is useful if couples haven’t yet decided whether to divorce or dissolve their civil partnership (dissolution), or if they can’t yet do so. It’s a written agreement that can set out your financial arrangements while you are separated and can deal with issues such as who pays the mortgage or rent and who lives in the family home.
If couples are planning to make their separation permanent, the separation agreement should ideally set out the final financial agreement that will be presented to the court when the divorce or dissolution finally goes through.
It is important to know that separation agreements are not technically legally binding and they do not have the same finality as a court order made on divorce. However, providing both parties have been open about their means and have obtained independent legal advice about the terms of the separation agreement, it is likely to be upheld by the court if challenged. Nevertheless, a separation agreement cannot override the court’s power to make financial orders in future financial proceedings and it is important to get specialist advice about factors that may or may not reduce the value of an agreement.
Some couples choose to take no formal action at all when they have been separated. It is possible to be separated for many years without either a formal agreement or divorce proceedings and this is an option that we can consider with you, whilst advising you about the various implications.
In rare cases couples may choose to enter into a legal separation, also called a judicial separation.
Judicial separation is very similar to divorce which relies upon the same facts and follows the same procedure. The main reason people choose judicial separation rather than divorce is if they do not wish to dissolve their marriage for religious reasons. The outcome of judicial separation proceedings is a decree of judicial separation rather than a decree absolute dissolving the marriage, so the parties remain married. A court can make financial orders on judicial separation. Judicial separation is not a common procedure. It is not necessary to obtain a judicial separation before getting divorced and often, people opt for divorce proceedings when they know that the marriage is over and wish to regulate their financial affairs.
It is essential to obtain good legal advice to weigh up the options available to you.
