If a couple decide to separate, as an alternative to divorce and court proceedings, they may wish to enter into a Separation Agreement. Separation Agreements can deal with a whole range of issues such as maintenance, provision and care for children, and division of any property.
Due to the nature and status of the agreement, a legal Separation Agreement should be viewed more as a contract between the spouses. Therefore it must comply with the usual contractual principles;
- There must be an intention to create legal relations;
- Benefit from independent legal advice; and
- Benefit from mutual disclosure and be without duress.
The Benefits of Separation Agreements
A Separation Agreement can be entered into quickly, whereas contested divorce proceedings sometimes take many months to resolve.
Progressing it quickly in this less formal way may remove some of the confrontation and acrimony which is often associated with the court process. In addition, given that it can be dealt with quickly and it is not necessary to divorce your spouse at the same time, a Separation Agreement is sometimes cheaper. A Separation Agreement can include virtually any provision you would like allowing for much creativity and flexibility in its terms. Your solicitor will guide you on the merits of including certain terms and you should always discuss the possibilities with your adviser at the outset.
If you’re not married but have separated with a partner, a Separation Agreement could be of great benefit to you.
The Disadvantages of Separation Agreements
The most important point to understand is that a Separation Agreement, whilst persuasive to any judge, is not legally binding upon the matrimonial courts. It is therefore capable of being varied and does not have the same security and certainty as a matrimonial consent order – it does not ‘lock-down’ a financial settlement in the same way that a Consent Order would.
By obtaining a divorce and consent order a clean break can be implemented which prevents any further claims being made by your spouse in the future. It is also fairly difficult to vary a consent order, however the same is not true of a Separation Agreement. A Separation Agreement cannot implement a clean break, which means that financial claims remain open in the future and there is always the potential that either party will in the future look for additional provision.
If you and your spouse decide to divorce at a later date, it is very likely that the costs incurred by entering into a Separation Agreement will be duplicated to some degree when the divorce proceeds. This is because on divorce, you will need to enter into a consent order which is the legally binding court document that address all claims arising from the divorce. Often any consent order will also contain many of the terms contained in the separation agreement the work will need to be repeated. If a consent order is entered into from the outset, there will be no duplication of charges.
It can be very difficult to enforce the terms of a Separation Agreement because the agreement is a contract rather than a matrimonial court order. Therefore you can only utilise the usual contractual remedies and cannot enforce the document within the matrimonial courts. A binding consent order can only be obtained if you also commence divorce proceedings and is usually a preferable route to entering into a Separation Agreement. It is sensible however to discuss all the possible options with a solicitor who will be able to advise you on the most appropriate route to take.