Splitting up: Should we draw up a separation agreement?

Lawpack on March 27, 2020

Divorce lawyers say there is a lot of confusion about what separation is.

You can be separated but remain married. This period of separation can count towards the divorce, if you finally decide to divorce.

You can also be separated even though you continue to live under the same roof; this is called ‘living in two households’.

Some people believe that they are practically divorced, or that they don’t have to do very much to get a divorce, after they have lived apart for a number of years.

The truth is that you have to go through the same procedure no matter what the reason for your divorce, and it takes just as long.

If you divorce and get your financial split approved by the court, your former spouse can’t make any money claims against you in the future, apart from changing the maintenance.

If you separate, you can’t get any financial agreement approved by the court, so you are still at risk of money claims being made against you by your spouse for many years to come.

Do you need a separation agreement?

Some couples draw up a ‘separation agreement’, which sets out the following details about the separation:

  • The date of the separation
  • Who will bring the divorce petition (if appropriate)
  • Where the children will live
  • Contact arrangements with the other parent
  • The financial agreement reached between you on maintenance and capital.

It may also acknowledge that a property has been sold and how the proceeds have been divided.

Does the separation agreement need to be put in writing?

There is no need to put a separation agreement in writing, but it can be an important piece of evidence later if one of you wants to go back on it.

Generally, you have the basis of an agreement in relation to future arrangements such as maintenance payments.

If you want to put it in writing, then Lawpack’s solicitor-approved Separation Agreement is here to help.

The pros and cons of a separation agreement

One advantage of a separation agreement is that you can agree to split the money straightaway, without waiting for the divorce/dissolution.

If you have a separation agreement and you have agreed that your spouse will take on the mortgage, and take your name off it and the deeds for the house, you can buy a new place without having to wait for the divorce/dissolution.

One of the disadvantages of a separation agreement is that neither the court nor the couple have to keep to it.

In addition, when you do decide to dissolve your marriage or civil partnership, you will need to pay out again for the financial agreement being made into a document that the court can approve. This will mean a double charge if you have already had a lawyer draw up your separation agreement

One thing you might consider before signing a separation agreement is that if you have decided to split, why wait to divorce? You may as well get it over with. Renegotiating the money on a divorce/dissolution can open up old wounds.

Can I get the court to approve our separation agreement?

Generally, you can’t get these approved until you are divorcing, unless you are judicially separating.

There are no hard-and-fast rules on this, and there are cases which suggest that some people are held to these agreements, whilst others are not, for a variety of reasons.

However, if you fulfil enough of the criteria, you have a good chance of creating a binding agreement. Some of the criteria is set out below:

  1. Each of you should give full disclosure of your financial circumstances.
  2. Each of you should take independent legal advice.
  3. There should be an absence of duress, or pressure on one party to sign off on the agreement.
  4. Each of you should have time to consider your position.

The court can take many different factors into account and the above list is not exhaustive.

If you think that your marriage is over, and you want to finalise everything, financially you are probably better off getting divorced sooner rather than later.

A separation agreement is a good idea if you think you might reconcile and just want to put some interim arrangements in place, rather than taking the drastic step of ending your relationship.

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What to do if your spouse is being unreasonable

Lawpack on March 27, 2020

Not all divorces are amicable. If your spouse acts unreasonably during the divorce, then you may need the powers of the court to protect you. Here’s a checklist of sources of support available to you during your divorce.

1. Protecting you and your children from violence during a divorce

Violent behavior or mental torment during a divorce isn’t unusual. What can you do if your spouse becomes violent or threatening? It’s important to see a solicitor immediately as they can, if necessary, obtain an injunction (called an ‘interdict’ in Scotland) from a judge within hours.If your spouse breaches the injunction and continues to be violent, the judge can hold your spouse in contempt of court, and they may be liable to imprisonment. In addition, you can also obtain what’s known as an occupation order (in Scotland called an ‘exclusion order’) preventing your spouse from entering the matrimonial home. There has to be up-to-date evidence of physical violence or some other serious form of harassment for such on order to be granted.

2. Protecting you and your children from harassment during a divorce

You can also obtain what’s known as a non-molestation injunction (called a ‘non-harassment order’ in Scotland) if your spouse persists in harassing you, telephoning you or visiting the property where you are living. This order prevents your spouse from harassing, assaulting or intimidating you and your children. The penalty for breaching a non-molestation injunction can be imprisonment.

3. Protecting your property during a divorce

When going through a divorce, it’s not uncommon for one or both spouses to conceal or hide their assets so that they cannot be considered by the divorce court. If you know that your spouse owns assets which you believe they are attempting to transfer, conceal or put in trust, you may want the divorce court to freeze them. To assist the divorce court, gather as much information as possible concerning the asset, including its location. For example, it would help to have details of your spouse’s bank account.

What can you do to protect your interest in a matrimonial home which is owned in the sole name of your spouse?

In England and Wales, you can prevent your spouse from selling or mortgaging the property by registering a Notice in the Charges Register against the property by completing Form HR1 – Application for registration of a notice of matrimonial home rights, if your property is registered land. If your property is unregistered land, you must register a Class F Land Charge at the Central Land Charges Registry in Plymouth; contact them on 0844 892 1111 for details. To find out whether the property is registered, contact the Land Registry who will explain the procedure; a small fee is payable.

In Scotland, even if the matrimonial home is in the sole name of your spouse, before they can sell the property they still need to obtain written consent from you if you are the non resident spouse and still have occupancy rights. Occupancy rights are lost if you haven’t been living in the matrimonial home for two years.

If your spouse has other property in their sole name other than the matrimonial home, once divorce proceedings have been raised, an ‘inhibition’ can be obtained to prevent your spouse from selling any property in their name. You will need the assistance of a divorce solicitor to obtain an inhibition, which is a court order preventing the sale of the property.

What can you do if your spouse refuses to sell or leave the matrimonial home or consent to a divorce?

A piece of legislation called the ‘Trusts of Land and Appointment of Trustees Act’ (which doesn’t apply in Scotland) allows the divorce court to order the property to be sold, but such proceedings are often drawn out and complicated in themselves and shouldn’t be considered without the advice of a divorce solicitor.

Changing the locks. You’re not entitled to change the locks even for your own protection, unless you have first obtained an ouster injunction (called an ‘exclusion order’ in Scotland).

4. Protecting your income and financial security during a divorce

If your spouse continues to pay the mortgage or rent and provides for the family’s needs as before, then no court action is necessary. But if the supporting spouse discontinues support, the other spouse can apply to the court for all forms of financial relief once the divorce petition has been lodged; before that, you can apply for maintenance only but this application has to be brought in a family proceedings court (part of the Magistrates’ Court). The court seeks to maintain the financial stability of both spouses. It therefore usually orders the husband to pay temporary income to his wife (maintenance pending suit, or ‘interim aliment’ in Scotland) until long-term arrangements have been resolved.

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Separation agreements explained

Lawpack on March 27, 2020

What is a separation agreement?

A separation agreement is used when a married couple want to separate but haven’t decided on whether a divorce is needed or not.

Terms are outlined that each party agrees to which sets out a variety of topics and duties, such as who pays the mortgage.

Separation agreements can cover a wide variety of topics, such as living arrangements, maintenance, property and finances, as well as arrangements for any children.

When would I use one?

It’s used when a couple is unsure about the future of their marriage. It allows for important issues to be ironed out – leaving both parties free from resorting to going to court.

Additionally, separation agreements for couples who are sure of their upcoming divorce allow for a temporary cessation of hostilities and provides a cooling off period before involving the courts.

Do I need a lawyer to make one?

It is essential to seek legal advice when drawing up one.

Even if you use a solicitor-approved separation agreement template, many terms should be discussed with a solicitor.

While it’s negotiable and flexible it is still a contract and it can become permanent if divorce proceedings go forward.

As such, expert legal advice is absolutely necessary to ensure you have drawn up a fair and legally robust document.

What is a separation agreement template?

It’s a simple way to create a contract that covers almost all the essential ground in transitioning into a smooth separation.

Templates cover the whole gamut of topics, including lump sum payments, transfers of property, pension splitting, maintenance, school fees, bank accounts, and any arrangements needed for children.

The separation agreement template available through Lawpack has been certified by solicitors for use in England and Wales.

Why would I want a separation agreement template?

Separation agreements are a way to ensure that your and the other party’s needs and boundaries are being respected and any violation of the terms can be taken to court as a breach of contract.

However, they need to be carefully drawn up within the conventions of law; otherwise, they may not withstand pressure in a court.

Separation agreement templates are a way of minimising that risk, providing enough guidance to ensure its contract status but enough flexibility to suit your unique circumstances.

Is the agreement taken into account if I divorce?

If the terms are reasonable, it will likely hold up in front of a judge as a fair settlement and is unlikely to be interfered with.

However, this is all conditional on the document conforming with legal standards, which emphasises the importance of separation agreement templates for ensuring a well written and respected contract.

Is the agreement legally binding?

Separation agreements are considered legally binding contracts, assuming that they are written in accordance to legal standards, either with the help of a lawyer or by using a separation agreement template.

Significant changes in your or your spouse’s financial circumstances may prompt the court to move away from the terms of the agreement.

But it is generally the case that if both parties were aware of the true financial circumstances of the other and received independent legal advice at the time of the agreement, then the court will usually enforce the terms of that agreement.

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