Do I need a separation agreement?
As an alternative to divorce or, perhaps more accurately, a precursor to divorce, your solicitor may suggest you draw up a separation agreement.
It may be that you are not ready to divorce, but want to separate and need to make arrangements for your children and financial affairs.
In that situation, a separation agreement may be an appropriate way forward.
Such an agreement does not have the finality of a consent order -- which can only be made after a divorce petition has been filed and you have reached the Decree Nisi stage -- however, it does settle things while you mull over next steps.
Advantages of a separation agreement
Depending on your circumstances, one advantage might be that a separation agreement allows you to stay married and leaves open the possibility of reconciliation. You also don’t need to go to court.
A separation agreement can also resolve a number of sensitive issues between you and your spouse. For example:
Finances
A separation agreement can deal with a number of important financial questions, such as:
- who pays the mortgage/rent?
- who pays the utility bills?
- who pays off the car loan or a hire purchase agreement?
Arrangements for the children
If you have children, the separation agreement may stipulate:
- where they will live and who with;
- arrangements for overnight and other contact;
- who will pay for their upkeep and other needs.
Grounds for divorce
To file for a divorce in England and Wales, one party must prove the marriage has broken down irretrievably. They do this by fitting their circumstances into one of five'facts’ (i.e., adultery; unreasonable behaviour; desertion for two years; consensual divorce following two years separation; and non-consensual divorce following five years separation). Thus, you could also use the separation agreement to state who will commence divorce proceedings and the fact relied on to prove irretrievable breakdown of the marriage.
Date of separation
In addition, the agreement will record the date you separated. This is important because you will need to refer to this in your divorce petition. The date of separation can also be significant when it comes to dividing up your property and finances.
Sometimes it may be difficult to agree on the'official' date of separation, however. For example, many couples cannot afford to live in separate dwellings after they decide to split up so carry on living together in the same property. If you find yourself in this situation, you can still sign a separation agreement and the date of separation will be the date you became "two separate households under one roof". (NB. Factors relevant in assessing this will be when you stopped sharing the same bed and cooking/eating together.)
Challenging a separation agreement
You cannot use a separation agreement to resolve all financial matters with your spouse. Regardless of its contents, both of you retain the right to challenge it and apply to the court for financial relief.
While the court has discretion to overturn or vary the agreement, however, it may consider the agreement a fair settlement and attach great weight to it. Ordinarily, the court will only vary an agreement if there has been a material change in circumstances or the court considers it unfair to hold one party to the agreement.
A party also remains free to apply to the Child Support Agency to change arrangements for child maintenance.
Legal advice
Before you begin negotiating a separation agreement, you should seek the advice of an experienced family law solicitor. A solicitor who routinely handles divorce matters may be able to offer suggestions and insights that you may not have thought of. After all, he or she is likely to have helped any number of other clients in similar circumstances. A solicitor will also help you understand your legal rights and obligations, and ensure any agreement you reach is a fair one.
- Source:
- FindLaw
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