Written by the Antony Clapp Team
Clients often ask us whether they should have a separation agreement. The starting point is to understand what a separation agreement is.
A separation agreement is neither a document prescribed by statute nor one required to be in any particular legal format.
Parties to a marriage (used interchangeably with civil partnership for the purposes of this narrative) sometimes, will take the necessary steps to arrive at an agreement, committed to writing, relating to their financial affairs, if the circumstances dictate, following the conclusion of their relationship. The desire for such a document generally operates when it is not possible to take steps to formally dissolve the relationship by law or delays will be occasioned in that process.
Up until the 6th of April 2022, couples preferring not to rely on a fault basis for dissolving their relationship had to wait at least two years post-separation for a consensual divorce; five years if this was not consensual. In that intervening time, some parties saw the wisdom in addressing the financial arrangements that would operate, post-separation, ahead of a formal dissolution and a financial consent order regulating these issues, granted by the court. Such formal agreements have never bound the jurisdiction of the court, which has absolute discretion whether to enforce the terms of any agreement or not. However, it could be heavily influential if entered into by parties having undertaken previous advisable steps prior to the presentation of a formal application for an order, by consent, in the same terms.
The divorce laws have changed, as of April 2022, and the period of separation, indeed the basis for the proof for an entitlement to divorce, has been reduced to a prescribed period of 20 weeks. Accordingly, the previous potential delays no longer are encountered, rendering the need for a written agreement largely obsolete. It remains good law that parties must wait 12 months from the celebration of the marriage, to present an application for the dissolution of their marriage and therefore, there can be a delay in that regard that still renders a separation agreement worthy of consideration in appropriate circumstances in the first year of marriage.
Despite the change in the basis for divorce, in most instances, the need for a separation agreement will be significantly reduced thereby attractively avoiding the costs associated with its preparation and execution.
Any benefits, advantages and disadvantages of such a document should be carefully considered with professional advice on a case-by-case basis.
IMPORTANT NOTE:
A separation agreement does not bind the parties and is not enforceable through the courts in its own right. Therefore, if one of the events occurs that prevents the acquisition of an order that would be enforceable, rights can be lost rendering a party to a broken relationship without remedy.
Take Action
If you are considering whether a separation agreement is necessary in your circumstances, please contact our team to discuss this further. We offer fixed-fee consultations which can help answer all your questions and confirm the right course of action that protects your particular interests. Please call 01622 815 940 during office hours or complete the enquiry form below for a callback.