Separation agreements?

Hi all,

I''m currently separated, the divorce will be proceeding but while I''m seeking a Consent Order for a Clean Break, I have read about a Separation Agreement.

Now the thing that irks me most about this is that it is not legally enforceable. While it is also said that "it carries alot of weight", I''m sorry, but that doesn''t "carry alot of weight" with me if it isn''t legally enforceable. So, are they worth the paper they are written on at all, or can I print one out on a roll of quilted andrex, or maybe even a post-it?

Cheers
D

A separation agreement is often used by parties who wish to separate by consent but have not yet reached the 2 year point; or by those who have reached an agreement over the finances but are some way off from either the Nisi or even starting off the divorce process. As a Consent Order can only be sent to court after the Nisi has been granted, finances agreed prior to that point remain on an informal basis so a separation agreement is the next best thing.

A properly constructed separation agreement by a solicitor (not one of these DIY templates you can download from the internet) such as the one Wikivorce provides for £259 does indeed carry far more weight than one written on "quilted toilet paper" and also means you have the benefit of legal advice on the agreement and sharing of finances.

Should there be a disagreement over the finances at a later stage, and the matter ends up in court, then the court will take into account all purported agreements whether these are made with or without legal advice although the weight given to those agreements rather depends upon how fair the agreement is. If it falls without the broad range of agreements that the court would order, the court is unlikely to want to interfere with the agreement.

As with all cases, if an agreement is unfair the court will not hold the parties to it. This is the same principle as both parties entering into a consent agreement with open eyes only for the court to reject the agreement due to the apparent disparity that it introduces.

It is worthwhile seeking legal advice to ensure that the agreement that you make is valid - there would be nothing worse than making plans for the future only for the agreement to be overturned if it was deemed to be invalid

I definitely understand where you''re coming from that''s for sure. Lets do a hypothetical situation here....

A separation agreement is drawn up and legal advice is sought on it. The Petitioner gets X and the respondent gets Y. Both parties use those monies as they see fit (deposit for a new property, car, whatever).

Down the line, the divorce goes through, the judge looks at the agreement and says its not fair, person Y shouldn''t have received that much and person X should have gotten more. Thing is, all the monies have been used. What happens then?

The money would still exist though in the form of assets, in your example houses and cars.

If there has been full and frank financial disclosure and legal advice the agreement is much more likely to pass the test of fairness anyway

The Judge wouldn''t look at the separation agreement as a matter of course - only the consent order.

This is why I have advised you to seek legal advice on any proposed agreement you may be about to enter into with your spouse prior to actually sharing out any monies or selling any property/assets.

True, but from the POV that you are still "legally" financially joined at the hip, you''ve really not moved on at all...

Well, you would have moved on in practical terms of agreeing the division of assets, and in some cases, selling the house and sharing the equity/one party buying the other out to release to enable both parties to rehouse themselves.

If your divorce proceedings are imminent, then I would advise you just wait for the consent order. However, if one of you has a mortgage offer that has a short expiry date and you are both in agreement and wish to action the division of finances sooner rather than later, then a separation agreement may be appropriate.