If you’re not happy in your marriage or civil partnership, you may not be able to – or feel reluctant to – divorce your partner. For many, a separation agreement is the next best thing, affording you space from your partner but with a mutual agreement in place as to who will live in your property, look after any children and how much maintenance will be paid.
An agreement such as this is not currently legally binding, but it may sway the mind of a judge if the argument ever reaches court (for example, if you later decide to divorce).
For any number of reasons, you may not want to take the step of issuing court proceedings for divorce or dissolution when you separate from your spouse or civil partner.
You may however want to formalise any agreement you reach in relation to property matters and/or arrangements for the children. If you are able to reach a voluntary agreement in this manner, then this can be incorporated into a separation Agreement, which is also sometimes referred to as a Deed of Separation.
A Separation Agreement will not provide the finality that an order on divorce or dissolution can, but undertaking the practical exercise required to prepare a Separation Agreement can be of great benefit to a couple, particularly in addressing financial issues for the future.
Although not currently binding in England and Wales, such an agreement offers clear evidence of the parties’ intentions should they later issue divorce or dissolution proceedings which require the court to become involved in settling the finances. It is for this reason that it is sensible for both parties to provide full and frank financial disclosure and to seek separate legal advice.
If the parties still agree the Separation Agreement terms when divorce or dissolution proceedings begin, an order can be drawn up in those original terms, then making them legally binding and enforceable.
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