As North West divorce and family finance solicitors, we are often asked the question ‘’should I sign a separation agreement?’’ The stock answer is ‘’that it all depends’’. However, our answer hinges on your plans and the specifics of your separation agreement.
Should I Sign a Separation Agreement or Get Divorced?
In many family situations, a husband or wife will suggest the signing of a separation agreement as they want to split up and divide their property and assets but they do not think that they have the grounds to start divorce proceedings.
There is still a common misconception that to start divorce proceedings you or your husband or wife need to be at fault in some way or you need to have been separated for at least 2 years.
The introduction of no-fault divorce proceedings in England means you no longer need to explain why you want to get divorced and you do not have to have been separated for a minimum period before you can apply for a divorce.
Under the new no-fault divorce proceedings process an application may be made jointly by a couple or individually by a husband or wife. The process to obtain your final order of divorce is similar whether you apply as a couple or as an individual.
Although you may now be able to apply for a no-fault divorce there may be reasons why you do not want to get divorced. For example, you may not want to do so for religious reasons. If your spouse wants to apply for a divorce then you have very limited grounds to object because of the rules surrounding no-fault divorce.
Talk to a Family Law Solicitor.
Talk to a family law solicitor before you sign a separation agreement or decide to start divorce proceedings as it is best to take advice on whether a separation agreement or divorce proceedings and a financial court order are in your best interests.
In most family situations you do not need a separation agreement and a divorce and financial court order because the financial court order will deal with everything that goes into the separation agreement. However, there are some situations where you may need both. For example, if you have separated from your spouse and agreed to a sale of the family home but you have found a buyer before you can obtain a conditional order of divorce and a financial court order by consent.
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Why is a Financial Court Order Preferable to a Separation Agreement?
Divorce solicitors often think a financial court order is preferable to a separation agreement because:
- A financial court order is legally binding. It cannot be changed (save for maintenance orders) unless there was fraud, misrepresentation or non-disclosure
- A separation agreement is not legally binding but it will carry a lot of weight if either spouse subsequently decides to start divorce proceedings and make a financial claim that is not consistent with what was put into the separation agreement
- Although you can agree to share pensions in a separation agreement the pension share cannot be implemented by the pension administrator until a pension sharing order has been made by a court in divorce proceedings and the final order of divorce has been obtained
- If you intend to get divorced but you want to sign a separation agreement first then you will incur separation agreement legal fees and later spend more on legal costs in sorting out your divorce and getting a financial court order. The separation agreement costs can be avoided altogether if you know you want a divorce as you can start no-fault divorce proceedings
- It is not all just about the legal fees; instructing a North West divorce solicitor to prepare a separation agreement and to later start divorce and financial court order proceedings is potentially more stressful than instructing your divorce lawyer to sort out the divorce and financial court order
When Should You Sign a Separation Agreement?
A separation agreement may be a good option for you if you have no plans to get divorced for religious or other reasons.
You should only sign a separation agreement after there has been financial disclosure so you can make informed choices about what goes into the agreement. You should also only sign a separation agreement after you have taken advice from a family law solicitor on the contents.
Although separation agreements are not legally binding on the court, they do carry a great deal of weight if either a husband or wife brings a financial claim in later divorce proceedings. You should therefore only sign a separation agreement if you intend to be bound by it.
How Can Evolve Family Law Help You.
Our family law and divorce solicitors can help you with:
- Advice on whether you need a separation agreement and the contents
- No-fault divorce proceedings
- Financial court orders by agreement after direct discussions or after family mediation
- Financial court order applications if you are not able to reach a financial agreement
- Children law orders if you cannot reach an agreement on residence or contact arrangements for your children
- Converting your existing separation agreement into a financial court order
- Amicable divorce – one lawyer divorce service
- Wills and Lasting Powers of Attorney if you have separated or you are starting divorce proceedings
Our divorce solicitors will provide expert advice tailored to your personal and financial circumstances.