Sometimes there is a mutual agreement that a marriage has broken down but the thought of getting a divorce is daunting. Some don’t want to divorce for religious or cultural reasons, or because of the stigma attached to it.
Some reach an agreement about how their assets and liabilities are going to be divided but do not wish to file the agreement in Court to save costs or time. For those, a separation agreement (also known as a nuptial agreement) may be the way forward.
What is a separation agreement?
Like pre-nuptial agreements, which are not binding in England and Wales (although some weight can be attached to them if, for example, the marriage was short and the circumstances of the parties have not changed), separation agreements are not legally binding either, however, the Courts will have more regard to separation agreements when considering a parties’ claim for financial remedy on divorce.
The Court will consider a number of factors which could give more weight to a separation agreement, such as the parties having undertaken an exchange of financial disclosure. It would also assist if the parties each obtained legal advice regarding the agreement reached. The Court’s aim is to ensure that the outcome of financial proceedings is fair. If an agreement reached between the parties appears fair, the separation agreement will hold more weight.
Despite this, there is considerable uncertainty as to the significance that will be accorded to separation agreements.
The following factors should be taken into consideration when contemplating a separation agreement over filing a consent order in Court:
- A party can still make an application at Court in the future for financial remedy proceedings because their financial claims remain open, whereas a consent order providing a clean break affords the necessary protection.
- A Judge’s starting point in matrimonial financial proceedings is that the parties cannot agree to oust the jurisdiction of the Court. Therefore, a Judge can choose not to add any weight to the separation agreement if the resolution is unlikely to be fair.
- Although a separation agreement may form a written contract between the parties, it is not enforceable in the Family Courts. If there are issues later on, these would be raised in the civil Courts under contractual rules, which are not as discretionary as those in the Family Court.
- Pension sharing or offsetting can only be enforced through matrimonial proceedings.
How can we help?
Emma Davies is a specialist family law solicitor at Nelsons.
At Nelsons, our team of our family law solicitors consider the circumstances of your separation and advise you in relation to the best way forward for you to ensure you are protected now and in the future from any claims.
For further information, please contact Emma or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online enquiry form.
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