Our family lawyers understand that when a marriage breaks down, not everyone wants to divorce straightaway. This can be for any number of reasons which are personal to you and your circumstances. Where this is the case, you should still formalise any decisions you and your spouse have made about the finances by entering a Separation Agreement.
A Separation Agreement is a document which formally records how you and your spouse or civil partner have agreed to divide your assets and what financial responsibility each party will take on.
A separation agreement does not end a marriage. If a couple wish to divorce, one of the parties will need to start divorce proceedings. While a court is not bound by a separation agreement, in practice its terms will usually be upheld if these have been carefully negotiated (usually with the benefit of independent legal advice) and concluded immediately before separation.
Taking advice early on can help put your mind at ease as you will be able to ask any questions that you may have and feel better informed about the process and the other options that are available to you.
We do not offer legal aid.
What is the Separation Process?
At the meeting we will run through your assets and explain to you what further financial disclosure you might need to be able to make an informed decision about the terms of any Separation Agreement. For example, this might include property valuations where a property value is in dispute; an independent accountancy report if there are business assets which are disputed or a pension sharing report to understand the pensions and how they might be divided between you. We will also explain to you the advantages and disadvantages of entering into a Separation Agreement and discuss whether this is the right option for you.
What is the difference between a separation agreement and a financial order?
The key difference between a separation agreement and a financial order is that once a financial order has been approved and sealed by a Judge it is legally binding on you and your spouse. You also need to have started divorce proceedings in order to obtain a financial order and have obtained Decree Nisi.
You do not need to start divorce proceedings to enter a separation agreement and so it is a good option for couples who do not want to divorce yet but who wish to formalise any agreement they have reached on their finances. Separation Agreements are not legally binding but the court will usually uphold a separation agreement which has been negotiated through solicitors and where financial disclosure has been provided.
Can I enforce maintenance payments which are recorded in a separation agreement?
As a separation agreement is not a legally binding document, if your spouse or civil partner reneges on any maintenance payments which are agreed under a separation agreement then you cannot enforce those maintenance payments through the matrimonial courts unless you commence divorce and financial proceedings.
My spouse/civil partner and I have agreed to split our pensions. Can we do that with a separation agreement?
To implement a pension sharing order, there needs to be a financial order in place and Decree Absolute must be pronounced (the final decree ending the marriage) for the pension companies to be able to split pensions.
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Herrington Carmichael offers legal advice to UK and International businesses as well as individuals and families. Rated as a ‘Leading Firm 2023’ by the legal directory Legal 500 and listed in The Times ‘Best Law Firms 2023’. Herrington Carmichael has offices in London, Farnborough, Reading, and Ascot.