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To Divorce or not Divorce? That is the question

Mar 6, 2018

Once a relationship has broken down, the ideal solution is for the couple to quickly move on – separately.

But separation can be a long process. That is especially so for married couples and those in a civil partnership. Ties cannot immediately be cut because, in plain terms, there’s a lot to sort out.

A separation agreement can be a useful halfway house. It’s not a divorce or dissolution document (so the marriage or civil partnership will continue to exist), but it is a contract between a couple that sets out terms on which they will live apart. It can be particularly useful where two people can’t quite bring themselves to begin divorce proceedings just yet. It’s useful, too, where people are not eligible to divorce because they haven’t been married for at least 12 months. Also where a period of formal separation is needed while the two-year threshold necessary for a consensual divorce is met (a two-year period of separation is one of the five grounds for divorce).

A typical separation agreement will cover arrangements for children, the family home, other joint property, bills and outgoings, and maintenance. If that sounds like a divorce, that’s because the terms will be pretty similar. In fact, it’s perfectly possible for a separation agreement to form the basis of subsequent divorce/dissolution arrangements.

However, there is one major difference: a separation agreement is not necessarily a binding legal document. This means that you may find it difficult to hold your partner to the terms (equally, you may find that you’re not held to them either). But there are ways of improving the chances of a separation agreement being upheld by a court, if that were to become necessary.

The first helpful factor is the really thorough, open, and honest disclosure of each party’s financial situation before the terms of the agreement are formalised. You and your partner should be very clear with each other about your bank accounts, savings, investments, and also your financial liabilities.   

The second helpful factor is legal advice. If you and your partner have each received independent legal advice on the agreement, the courts tend to be far more likely to look upon it as an enforceable legal document.

As family lawyers, we advise clients on the difficult decisions they will need to make, and on the difficult steps they should take. Where a separation agreement is right for you, we’ll tell you. And we’ll help you agree the best terms that will secure your future.

Contact our family team today on 01264 353411, email: family@bsandi.co.uk or  fill in our no obligation, online enquiry form and we will be happy to help.


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