Why leave it when you can sort it – an introduction to separation agreements
Some spouses may be of the view that the marriage is at an end, but are not emotionally ready to deal with the divorce or may have other reasons as to why they do not wish to commence divorce proceedings so they decide to leave matters in limbo. This, effectively, means that parties are not able to deal with financial matters as the divorce proceedings must at least progress to the Decree Nisi stage before a financial consent order can be filed with the Court. Leaving matters in limbo can create a number of issues for the parties who should, therefore, focus on the interim position such as entering into a separation agreement with their spouse setting out the division of their matrimonial assets. There are a number of advantages of a separation agreement some of which are:-
Certainty The parties can agree how their finances will be arranged during the period of separation and how their finances will be divided if they later divorce. This can save the uncertainty, time and stress of later contested financial remedy proceedings.
Should matters progress to contested financial remedy proceedings, while a Court is not bound by a separation agreement, in practice, its terms will usually be upheld if:-
- Both parties sought independent legal advice upon the terms of the separation agreement;
- Both parties were transparent and had given full and frank financial disclosure to one another; and
- The agreement was fundamentally fair and reasonable in all circumstances.
Supporting personal beliefs Some parties may not want to divorce for religious, personal or cultural reasons. A separation agreement may be an appropriate compromise where the parties believe the marriage is at an end, but do not wish to obtain a divorce.
Ability to retain benefits that are lost on divorce Some benefits, such as cover under medical insurance policies, life insurance policies and pensions, are not available once couples divorce. These benefits are often still available where the parties are separated as they remain married.
Flexibility A separation agreement can contain provisions or deal with issues that are beyond the scope of the Court’s jurisdiction, which makes them very flexible.
Halfway house Some couples may feel that the marriage is close to ending, but are not emotionally ready to divorce. A separation agreement is a helpful first step towards divorce from which the parties are able to row back if they wish.
Potential for reconciliation As the marriage still exists, the couple can decide to reconcile at a later stage should they wish to do so.
Therefore, parties should give careful consideration to how they wish to deal with matters on the breakdown of a marriage. Leaving matrimonial matters in limbo may seem easier for the moment, but that is not the solution and may prove to cause difficulties in the future. Therefore, secure your future by dealing with your issues in the present.
If you need advice regarding your matrimonial matters, please do not hesitate to contact me on 01256 320 555 or email me on fkhalid@clarkeandson.co.uk. We currently offer all new family law clients an initial consultation (1 hour) with written confirmation of advice for £100 plus VAT.
