How binding are separation agreements?
Separation agreements are not legally binding as although they can be a formal legal document, they are not technically legally binding in their own right. An agreement is not a court order and a court is not usually involved in creating them. It is, a contract between two people and therefore could still be challenged within court like any other contract. This is why it is important to ensure they are correctly drafted.
For married couples, a separation agreement can often be made into a financial consent order within any future divorce proceedings, by having your solicitor properly draft it and then applying to the court – so making it legally binding. An agreement can also help speed up the divorce process, if arrangements have already been agreed in advance.
Separation agreements are advantageous to both parties as they may be able to stop one of the parties from later changing their minds about an agreement that has been reached. A separation agreement therefore can help safeguard your position as, if one of you later refuses to keep to the terms of the agreement, you can ask a court to enforce the terms.
If a separation agreement is entered into voluntarily by both parties, with full disclosure of their finances, the benefit of legal advice and the agreement is reasonable, it is unlikely a judge will amend the terms. If you have an existing separation agreement, but later disagree and require the courts to settle the dispute, then there is the chance that a judge may see no reason to vary it when making financial orders and child arrangement orders.
For a court to consider upholding an agreement within divorce proceedings, it would have to fulfil these conditions:
- Both parties took legal advice before entering the agreement.
- Both parties’ circumstances are broadly similar to when the agreement was made.
- Both parties made full and frank financial disclosure.
Should you choose divorce or a separation agreement?
When a relationship breaks down, it isn’t possible to legally divorce or dissolve the partnership straight away. For example parties may not wish to cite adultery or unreasonable behaviour for the breakdown and would have to wait two years for a non-fault based divorce. The period of time between the breakdown of the relationship and the opportunity to file for divorce can be difficult for both partners, especially as bills and other financial commitments will still need to be paid in the meantime, even if they are no longer living together. For some couples, separation may not lead to divorce. They may choose a period of separation but ultimately decide that they wish to get back together, or that they are not ready to pursue a divorce at this point and want the separation to continue indefinitely.
Separation agreements can be drafted to represent the position between parties. Our specialist solicitors have drafted various separation agreements to reflect arrangements reached following the breakdown of a relationship. Separation agreements can include details on disposing of property, furniture, loans, bank accounts and any other assets. Many agreements also include financial arrangements made between the parties.
How to draw up a separation agreement
It’s recommended that you take expert legal advice before drawing up a separation agreement. A specialist family law team, highly experienced in this type of agreement, is ideally placed to make sure that your best interests are represented.
If you have separated from your spouse or partner but are both still living at the same address, you may wish to consider a separated but living together agreement, which is essentially a separation agreement, but with the understanding that you are both residing in the same property for the time being. This type of living situation can be very challenging, during what is already a very difficult time, so we recommend that you have a separation agreement drawn up that will outline how the household will work from a financial point of view, to avoid any ambiguity or misunderstandings, now and in the future, over who is financially responsible for what.
For cohabiting couples whose relationship breaks down, but they are not married or civil partners, there are not the same legal protections or obligations, so putting a formal agreement in place can help make sure that dividing any assets, properties or financial responsibilities is more straightforward. This helps to ensure that the separation is fair on both partners.
Should you require further advice in relation to separation agreements and whether this will suit your needs, or if you require an agreement drafting, please do not hesitate to contact our specialist team who will be able to assist you, call us on 0161 696 6193 .