If a married couple wish to separate but do not want to divorce they may wish to have a formal divorce/separation agreement in writing dealing with arrangements for their assets, finances and children. There are two ways of dealing with these agreements being an informal agreement between the parties often negotiated between the couple’s solicitors or a more formal arrangement made through the courts and approved by a matrimonial judge. If an informal arrangement is initially made it may have consequences on any formal arrangement sought to be made through the courts at a later stage and a judge may not subsequently approve earlier informal arrangements particularly in regards to children whose interests are always paramount or in regards to what may have been an unfair informal financial arrangement even though it was consented to by the parties.
- Judicial Separation.
A judicial separation is an order made by a judge in the divorce section of the county court which releases the partners of a marriage from their obligation to live together. This type of divorce/separation arrangement which used to often precede a divorce is now rare but is occasionally used by couples who have a conscientious or religeous objection to divorce. A judicial separation order is not a divorce and neither partner is free to remarry.
- Separation Agreement.
This type of arrangement is a written agreement between a married (or unmarried) couple who intend to stop co-habiting and it sets out how the parties intend to resolve issues relating to assets, finances and children. One of the advantages of having a formal financial agreement is that it can give both spouses a degree of protection if that agreement is recorded in a legal document. If the terms of such an agreement appear to favour one party rather than another then it is important that both parties obtain independent legal advice to avoid a claim by one party that he/she was forced to sign it accepting unfair terms thereby leaving it open to be disputed and revoked in any subsequent court proceedings.
A divorce/separation agreement can, dependent on the parties needs cover a wide range of matters however the most common items relate to the couples finances and arrangements for children including:-
An agreement to live separately which releases both partners from the duty to live together as man and wife which is the basis of the marriage contract. If one party does not agree to the separation then this clause should not be included, as it will prevent any future right to claim desertion which is one of the facts supporting the irretrieval breakdown of the marriage in divorce proceedings.
An Agreement not to molest, annoy or disturb the other partner which opens the possibility of taking injunction proceedings if one party starts to become a nuisance short of physical violence which is often necessary in this type of action.
An agreement to provide maintenance for the other partner which will stop if that partner cohabits with another person.
An agreement to provide maintenance for any children of the family.
An agreement relating to custody, access and contact arrangements for the children of the family.
An agreement relating to property rights and property disposal including the possibility of a lump sum payment from one spouse to the other.
Our nationwide network of specialist lawyers will give initial free advice on all matters relating to matrimonial disputes including dissolution of marriage, separation, injunctions, finance and agreements and court orders relating to custody and access to children without further obligation. If after talking to us you decide not to take matters further you are under no obligation to do so and you will not be charged anything at all.