Separation Agreement Solicitors

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Separation Agreements

 If you need legal advice on the law and legal issues regarding separation or have decided to separate and think you need a separation agreement, get in touch for a free initial discussion. 

Often, for religious reasons or simply because a married couple do not want to immediately divorce or would rather do so on the basis of 2 years separation, they enter into a separation agreement.

The document will set out their intention to divorce on the expiry of the 2 year period and either can then petition accordingly, without having to place blame and with the others clear consent.

The payment of maintenance can be agreed and set out in respect of both a spouse and the children.

 What to include in a Separation Agreement? 

Such an agreement can make provision for the following:

  • Agreement to separate
  • Agreement to divorce in the future
  • Maintenance
  • Care of the children
  • Lump sum payments by way of settlement
  • Transfer of property
  • Occupation of the matrimonial home
  • Assignment of life policies
  • Closure or transfer of joint bank accounts
  • Payment of liabilities -who shall pay the mortgage and other such matters such as repair can also be covered in detail.

The general principles of contract law apply to these agreements. First and foremost there must be a mutual intention to create legal relations. It is also paramount for both parties to seek independent legal advice, this will work towards the enforceability of the agreement in the event of dispute later as it will show they both had a full understanding of the terms and what they were entering into, having been advised as to their rights and obligations. This is also a clear indication that there was no coercion and the agreement was not entered into under duress.

Independent advice will also seek to ensure no argument as to mistake or fraud can be brought later.

Both parents will of course maintain their respective parental responsibility and will have to continue to make important decisions regarding the children together. Having an agreement in place will also not prevent either party from making an application under the Children Act if they deem it necessary in the future.

 Advantages to entering into a separation agreement 

  • Whilst there is agreement it can result in a speedy process and therefore costs can be kept to a minimum.
  • Anything can be agreed or added so it keeps the relationship flexible.
  • It provides all involved with certainty and detail as to how they are to live going forward.
  • The separation agreement, so long as it is working, can be used in subsequent divorce proceedings to settle matrimonial finances by simply being converted into a consent order. This will make the divorce process shorter, less stressful and a lot cheaper.

 Possible downsides of entering into a separation agreement? 

  • Such an agreement is the same as any contract. There is a limit to its enforceability and only the usual breach of contract remedies are available, such as damages or specific performance. A Court order is much easier to enforce.
  • It is not final – a Court order as part of a divorce including the dismissal of future claims ensures that neither party can bring a claim against the other later, whereas a separation agreement alone will not.
  • Power to vary an agreement is available to the Court however if it is not agreed in writing then either party can seek to vary it at any given opportunity.

 Formalities 

In an effort to save costs it is best for the parties to try and resolve all issues before the agreement is drafted, as this will reduce the amount of time any solicitor will take in drawing up the agreement.

Solicitor advice on separation

Whether solicitors are used or not, each party should disclose to the other fully and frankly all their assets and liabilities, showing documentary evidence of the same. This will reduce any argument as to whether or not one party or the other is hiding information about their income and ability to pay maintenance for the other or their children.

Each party should also have independent separate legal advice from a solicitor, incorporating any details that had already been agreed and trying to resolve any other remaining issues between the parties. Each parties’ solicitor will act in their client’s best interest, making sure that every part of the agreement is legal and fair.

Get in touch if you need advice on any aspect of separating from your husband or wife or specifically legal advice on a separation agreement.