Alternatives to Divorce: the Legal Separation Agreement
Although your marriage coming to an end is not something pleasant to think about, it is important to explore your options rather than just assuming divorce is the only option you and your partner have.
It is possible to opt for a legal separation, which can act as a forerunner to a finalised divorce or a final choice for those couples who do not want to divorce.
If you do choose to go down the separation route, it is in your best interests to have a family law solicitor draft you a legal separation agreement. Legal separation agreements help to establish rights and responsibilities when it comes to housing, assets and children if your relationship has broken down.
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What Is Legal Separation?
Separation is often the first step that couples will take in order to avoid jumping too fast into divorce proceedings.
It is useful to separate initially, even if you ultimately choose to pursue a divorce, reconcile the relationship, or even just remain separated.
There is a difference between simply separating and formally separating through a legal application; the latter provides more security – particularly financially – moving forward.
To legally separate means that you and your partner agree to live as separate people leading separate lives.
It should be noted that in some cases it is possible that this can be achieved in the same house, but there must be proof provided that you are actually living separately.
What Is A Separation Agreement?
A formally drawn up marriage separation agreement can deal with a range of things, but most importantly the couples’ finances.
One of the primary purposes of a legal separation agreement is that the couple accepts to live apart.
Who will live in the family home can also be written into the agreement.
A timescale can be agreed for one or both of them to leave the shared home and set up a new one elsewhere.
Ideally the legal separation agreement will set up a financial settlement which will need to be presented to the court for approval when the couple are proceeding with a divorce.
If the couple’s individual financial circumstances differ significantly, it may be deemed necessary for one person to pay maintenance for the benefit of the other personally and/or for any children they have together.
A legal separation agreement can also deal with the payment of school fees, a mortgage or rent, and how other shared outgoings will be met.
In particular, thought should be given to dates and circumstances under which agreement to pay any sort of maintenance will end. A family law solicitor will be able to advise on this.
What Does A Legal Separation Agreement Consist Of?
Usually, a legal separation agreement has primarily two functions:
- To outline the living situation of the separating couple
- To outline the rights and obligations of both individuals upon the separation, most importantly regarding finances
Almost always, both individuals will need to set out in their agreement how their shared home will be dealt with.
This can mean a sale, one party buying the other out or giving up a tenancy within a certain timescale.
A properly put together legal separation agreement will be based on the full disclosure of both people’s financial circumstances.
Although this might seem too personal, without full financial disclosure the separation agreement is extremely unlikely to be upheld if there is a dispute in the future.
Both crucial parts and anything relevantly related to them will be discussed by the couple and a family law solicitor.
This can occur individually or together depending on the circumstances.
The solicitor will then draw up the agreement clearly based on what the couple have agreed on with regards to habitation and finances.
Not sure if a legal separation agreement is right for you? Contact us to find out more.
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Advantages of a Legal Separation Agreement
- Legal separation agreements are legally binding, so provide a level of protection against your partner backing out of a financial agreement
- An agreement made regarding the financial settlement early on can provide a sound basis for the ultimate financial consent order which is presented to the court once an official divorce date is set
- A separation agreement is more certain than simply putting off a financial settlement discussion until the divorce proceedings begin, which will likely be two years or more post-separation
Disadvantages of a Legal Separation Agreement
- Unfortunately, no financial agreement regarding a divorce or civil partnership dissolution is legally binding until it has been approved by the court
- Financial aspects of a separation agreement will not achieve finality in the same way as a consent order approved by the court will
- It can be argued that even with a very good legal separation agreement, there is a lack of closure for the couple since they will have to revisit their financial settlement at the point of divorce
Frequently Asked Questions
Do I Have to Be Legally Separated Before Divorce?
In short – no. You do not have to be legally separated before your divorce. However, depending on the reason you are citing for your divorce, you may want to obtain a legal separation agreement to use for future reference.
For example, if you are separating with the view to divorce after the two year period necessary to qualify on the grounds of separation, a legal separation agreement can be the first step towards this. Obtaining such an agreement also limits the chance of problems concerning finances and living arrangements arising during the two years.
It is important to remember that every marriage is unique, so it is paramount to take your time to make a decision. Legal separation can buy you that time, whilst simultaneously dealing with key issues of a marriage which can fall apart during a break-up.
Why Get a Legal Separation Instead of a Divorce?
For many couples, choosing legal separation over divorce can make more sense, both in terms of their relationship and finances. Legal separation as opposed to divorce can help to keep your finances afloat, not only due to the high cost of divorce but also due to the fact you may be able to continue receiving certain benefits.
Many people choose to opt for separation before divorce, whilst others see legal separation as enough to mark the end of the relationship so opt for that instead. Separating as a first port of call is also a reasonable initial step to take, as it is not as final as a divorce.
If there is any chance you think you may be able to reconcile the relationship, a legal separation can act as a temporary measure and allow you and your partner to take time apart. In this period apart it’s still a good idea to have a separation agreement drawn up in case of any bumps in the road which may cause further issues.
What is a Financial Consent Order?
A financial consent order is a legal document which confirms the financial section of your separation agreement and makes it legally binding.
It explains how you’re going to divide up assets like:
As stated above, a financial consent order can also include arrangements for maintenance payments like child maintenance.
A family law solicitor will need draft a ‘consent order’ and ask a court to approve it in order to complete this part of the process.
A consent order is only available to those who are legally separated but have begun divorce proceedings.
Do you need help obtaining a legal separation or a financial consent order? We can help you.
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We Can Help
Going through a breakup is tough, especially when there are assets to divide and children to care for. A legal separation agreement can act as the stop-gap between a breakup and divorce, or can be a permanent choice you and your partner make if you don’t want to go through a divorce.
We believe that it is important to know and understand your options for separation to avoid getting yourself into financial difficulties by making the wrong decision for you and your family.
If you require any assistance regarding divorce or legal separation our family law solicitors are more than happy to help you – just get in touch via the contact form or on the phone 0844 414 0667.
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