If a couple are splitting up amicably and selling and dividing assets by agreement they often don’t see the need to get divorced immediately or to formally record the financial agreement they have reached over who keeps what. Sometimes that is because the couple don’t think a document is needed as things are friendly between them or because they are concerned about the cost of getting a solicitor to draw up a separation agreement.
Family finance solicitors are often asked whether a separation agreement is a necessary exercise if the couple have reached an agreement. The answer is that in many situations a separation agreement is not needed if the couple plan to get divorced. This is because within the divorce proceedings the Court can be asked to make a Financial Court Order by agreement .If the couple don’t want to get divorced a separation agreement is essential to minimise the risks of expensive future Court proceedings .
What is the point of a separation agreement?
Separation agreements are designed to record the agreement reached over the division of financial assets on separation and to formally agree that in any future divorce proceedings neither will bring any additional financial claims other than what was agreed at the time of the separation agreement.
Most people don’t realise that after marriage a spouse can make claims for spousal maintenance, cash, property and pensions. A separation agreement sets out how assets will be divided and what, if any, future financial claims can be made. If direct discussions just sort out the family home and household contents and isn’t recorded then you are both vulnerable to financial claims in the future .The separation agreement is intended to give you both peace of mind so that you both know where you stand financially.
What happens if we don’t do a separation agreement?
If you don’t have an agreement in place then if one of you starts divorce proceedings at a later date either one of you could bring financial claims. The claims could be over assets owned by one of you prior to the marriage, inherited money or gifts, or wealth built up after your separation from your spouse.
Without a separation agreement in place your spouse could argue that you did not reach a full financial agreement at the time of your split, leaving it open for him or her to bring financial claims over your pension or business or other assets or for spousal maintenance. The uncertainty and worry about future financial claims and Court proceedings can be reduced by signing up to a separation agreement.
Who should do a separation agreement?
Anyone who is splitting up from a spouse and does not want, for whatever reason, to get divorced straight away should sign a separation agreement. You may think that an agreement is not necessary as you don’t own anything with your estranged spouse but a spouse can make financial claims against property owned in your sole name and assets and property acquired after the split.
The best advice is to get legal advice on whether a separation agreement is likely to be of benefit to you. As specialist family finance solicitors we can tell you whether an agreement would be a good idea and advise you on your options.
What is important for a separation agreement?
- Financial disclosure;
- Independent advice;
- The agreement should be fair to both of you and meets your needs.
My spouse doesn’t know how wealthy I am. If I do a separation agreement will I have to say what I own?
This is often a quandary for spouses who have kept their finances separate and so they don’t know the detail of what their partner owns or earns or their partner doesn’t know about the existence of family wealth or trusts.
For a separation agreement to carry weight in any future divorce and financial Court proceedings the two of you need to know what the other has or may get in the future , for example as a result of a trust distribution. This is because in order to come to an informed financial agreement and take advice you both need to know about the other’s circumstances.
Most people recognise the need to give information about finances in the agreement as in that way it will carry weight and give peace of mind.
We are agreed on a separation agreement but my spouse doesn’t want to use a solicitor to give advice. Do we both need separate solicitors?
Yes, you do .If a spouse doesn’t get their own separate legal advice on the agreement then it will carry less weight. The agreement is an important legal document, and just in the same way that you need a solicitor to sort out the title to a property when buying a house, you both need solicitors to advise you on the separation agreement. There are normally a lot of options on what can go into the agreement and so you both need advice about what will work for you.
Many separating couples are fearful about asking a solicitor to get involved with preparing a separation agreement as they don’t want any disagreements with their spouse as they hope they have sorted out their financial split. That is totally understandable and the job of specialist family finance solicitors is to make you aware of what can go in the agreement , making sure that all future financial claims are sorted out and what may be good options for you to sensitively finalise an agreement that works and is effective for both of you.
The house is owned by me. Why do I need a separation agreement if it is my property?
When a couple get married a spouse automatically is entitled to make financial claims on separation , including claims over property , shares , investments , cash , pensions and businesses owned by one spouse. They can also ask for maintenance. Sole ownership of a property or assets doesn’t protect them from claims on divorce. The separation agreement can stop or limit those claims.
Do I need a separation agreement as I am a beneficiary of a trust? Does the trust protect the family money?
A trust is a useful means of protecting family wealth but it is only one protective measure. Most trustees would recommend that a beneficiary of a discretionary trust fund should also have a Financial Court Order or a separation agreement if they split up from a spouse. The agreement can record that any trust money is ring fenced and protected from any financial claims on divorce.
Do I need a separation agreement as I am a shareholder in a family company and my spouse has transferred their shares in the business to me as part of our financial split?
Yes, you do. Whether your spouse is or isn’t a shareholder in the company this won’t prevent them from being able to bring financial claims against your shareholding on divorce and that financial claim could cripple the company. A carefully prepared separation agreement can record the agreement reached to minimise the risks of additional financial claims.
We own property abroad. Do we need an agreement in the UK as well as where we own the property?
Possibly. A lot will depend on where the property is owned and by who. Robin Charrot is a Fellow of the International Academy of Family Lawyers, the world’s leading organisation of expert international family lawyers and, where there is potentially a need for more than one agreement, he works with specialist solicitors in different countries to make sure that you are protected.
We signed a separation agreement a few years ago and we are now getting divorced. Do we need to do anything?
Yes, the separation agreement may need to be carefully reviewed if you are not happy with the agreement to see if any financial claims can be brought. Alternatively the agreement may need to be reconsidered if, for example, one of you is receiving spousal maintenance or child support .If you are content with the agreement then it should be converted into a binding Financial Court Order to give you additional financial security and peace of mind.
We can help advise you on what should go into a separation agreement or review an existing agreement for you.
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