As a divorce and family financial solicitor, I am asked the question ‘’should I sign a separation agreement?’’ a lot. The stock solicitor answer is ‘’that it all depends’’. However, the answer really does hinge on your plans and the specifics in the separation agreement.
Should I Sign a Separation Agreement or Get Givorced?
In many family situations, a husband or wife will suggest the signing of a separation agreement as the couple want to divide their property and assets but do not think that they have the grounds to start divorce proceedings. Alternatively, the couple want to wait until they have been separated for two years so they can divorce amicably.
There is a common misconception that starting divorce proceedings without waiting until you have been separated for two years will cause hurt.
If a couple understand the benefits of not waiting to start divorce proceedings until they have been split up for two years, it is often possible to amicably divorce based on a spouse’s adultery or unreasonable behaviour. It is all about the communication and understanding why the divorce is a means to an end.
You may question the talk of early divorce proceedings when you have been asked to sign a separation agreement but if you divorce there is normally no need to sign a separation agreement. That is because in the divorce proceedings the court can make an agreed financial court order. The court order can be in the same or similar terms to what you would have put into the separation agreement.
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 or 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 agreed in the separation agreement;
- Although you can agree to share pensions in a separation agreement the pension cannot actually be shared until a pension sharing order has been made by a court in divorce proceedings;
- If you intend to get divorced but want a separation agreement first, you will incur separation agreement legal fees and later spend more on legal costs in sorting out the divorce proceedings and getting a financial court order. The separation agreement costs can be avoided altogether if you know you want a divorce and you have the grounds to start divorce proceedings ;
- It is not all just about the legal fees , instructing a Whitefield divorce solicitor to prepare a separation agreement and to later start divorce and financial court order proceedings is potentially more stressful than instructing the 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 are in a position to make informed choices about the agreement. You should also only sign a separation agreement after you have taken legal advice 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.
For information on separation agreements or starting divorce proceedings or applying for a financial court order please call me +44 (0) 1477 464020 or email me at [email protected]