Separation Agreements - Are They Legally Binding?
Couples with some difficulties in the marriage may decide to spend a few days or weeks apart to give themselves some physical and emotional distance.
It can be helpful when there are arguments or tension to take a step back and evaluation the relationship. From there, couples decide whether they want to be separated for a longer period of time or whether they want to work on the marriage while living together.
Most couples contemplate a trial separation as practice before divorce. It’s often like a trial divorce and should be treated with the same legal seriousness of a divorce. Instead of a divorce decree before a judge, there are other agreements and legal documents.
What is a separation agreement?
A separation agreement is a document that is the end product of negotiation or mediation to achieve a financial settlement that will be binding on the parties and would stand up if challenged in a court of law. Separation agreements should always be drafted by experienced lawyers. A separation agreement template downloaded from the internet is not going to stand up in court.
At the start of the separation, an agreement should be made between the two parties that covers maintenance, child support, credit card debt and assignment of assets. Sometimes couples can be separated for months or years, and as time goes on, the separation could cause the couple to become more alienated. Details like distribution of assets are important and should be handled fairly early to decrease the likelihood of court proceedings later.
Agreements like this are normally used where the parties want to split up but do not want to divorce straight away. It means they can have an agreement in place and even go ahead with splitting assets, such as the house, bank accounts and investments without having to wait to start divorce proceedings.
Is a separation agreement legally binding?
The family court in England and Wales has to take any prior agreement into account when looking at the financial side of a divorce in England and Wales. this is set out in s.25 Matrimonial Causes Act 1973. If the parties have had legal advice and there has been full disclosure of assets at the time of the agreement, then the court would look to uphold that agreement unless there was a very good reason why they should depart from it.
Always get legal advice on any proposed agreement you reach with your spouse, to ensure that it is fair and also that a court can actually do the things you want once you come to divorce.
Mark Keenan writes on subjects such as Separation agreements Separation agreements and online divorce.