Separation agreements are useful if you haven’t fully reached a decision about whether to divorce or dissolve a civil partnership, yet still want to formalise the separation. But can you create one yourself? And if so, is it legally binding? Does a separation agreement need to be drawn up by a solicitor? Here, we discuss your options.
When can I use a separation agreement?
A separation agreement can be used if you are separating but are unsure whether to get divorced. It can also be useful if you are unable to get divorced, for example, if you’ve been married for less than a year or cannot divorce for religious reasons.
Can my ex be forced into signing a separation agreement?
You cannot force someone to sign a separation agreement, and if you did, then it would make it impossible for a court to uphold the terms of the agreement.
Can I get divorced without a separation agreement?
You do not have to have a separation agreement to get divorced. Although many separating couples come to an amicable agreement before applying for divorce or dissolution. But if you and your spouse are struggling to reach an agreement, you may find a divorce/dissolution to be the best option.
Do I need to get a solicitor to draw up a separation agreement?
Although there is no legal requirement to get a solicitor to draft a separation agreement, or indeed to obtain legal advice, it is a good idea to do so. Reasons include:
- Because you are creating a document which terms the court can determine or uphold
- You can get advice regarding whether there are any reasons you shouldn’t sign the agreement before you go ahead
- A separation agreement is more likely to be upheld in court if you and your ex-spouse have given full financial disclosure, and you have received independent legal advice from a solicitor
If the separation is causing problems, it is particularly important to seek legal advice. For instance, if one party is wealthier than the other causing a bargaining imbalance or if your ex-spouse is intimidating you or putting pressure on you to sign the separation agreement. It is important to note that you cannot use the same solicitor as each other and must have separate legal representatives if the agreement is to be capable of enforcement.
Are separation agreements available for non-married couples?
The law does not treat cohabiting couples in the same way as their married counterparts. As a cohabitee, if you decide to separate, then you will be able to keep your own property or your share of any jointly owned property. Separating cohabitees can still create a separation agreement because it can be a useful way to determine how certain assets should be shared. This will let you and your partner mutually agree the terms and help to reduce any unfairness or arguments in the future.
How is a separation agreement ended?
Most separation agreements contain an end date, but in the absence of one, it can be ended mutually by agreement. If you subsequently decide to get divorced, you can use the terms of the separation agreement to form the basis of a financial settlement, which is then enshrined in a consent order.
If the separation agreement is breached, it will be treated the same as breaking a contract and dealt with by the court accordingly. This means the person found guilty of breaching the contract may be expected to pay damages to the other party.
Can a separation agreement be overturned?
After a separation agreement has been agreed and signed by both parties, it is extremely difficult to overturn it or make changes at a later date unless the parties agree.
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