Formal separation or divorce? A family law solicitor can help you decide

10th March 2015 by

When a relationship breaks down a divorce is not always the first thing which couples wish to pursue, however a discussion with a family law solicitor may be advisable to consider the possibility of a formal separation agreement.

The formal separation agreement in family law

Initially, a couple may wish to agree the terms of their separation verbally as an informal agreement, but, in most relationships, it will be necessary to quickly agree details such as child maintenance, the ownership of the family home and child contact arrangements.

A separation agreement is essentially a formal notification that the parties to the marriage have agreed to live apart, but, as an officially drafted and witnessed document, it has the capacity to establish terms pertaining to many varied aspects pertinent to the individual family circumstances of each individual couple.

Advantages and disadvantages of the formal separation agreement

For:

  • Once the agreement has been drawn up and signed, both parties are formally released from their legal requirement, as married spouses or civil partners, to cohabit. This can prevent either spouse from making allegations of desertion when pursuing a divorce or civil partnership dissolution.
  • When a separation agreement is made early it can be used as a foundation for an ancillary relief package if the couple should decide to get a divorce. If a formal separation agreement’s terms for provision of maintenance are upheld they can be used as rebuttal evidence against any claim during divorce proceedings of failure to provide maintenance during a period of separation.
  • A formal separation agreement is flexible and couples can choose to include any terms they feel necessary to facilitate the split.

Against:

  • If the terms of a separation agreement are not adhered to – for instance if maintenance is not paid – it is not as easy to enforce those terms as it would be if they been ordered as part of a financial settlement on divorce.
  • A formally agreed separation document will not carry the degree of finality that a family law court divorce decree offers. Spouses are still legally married and the separation agreement can be subject to further application by either spouse to alter terms for ancillary relief at the commencement of divorce proceedings.

Despite its lack of finality in the ending of the marriage, some clauses for maintenance payments in a formal separation agreement will fall under section 34 of the Matrimonial Causes Act 1973 and, as such, can only be varied by a family law court order. Careful consideration as to the Act’s definition of a maintenance agreement will have to be made if the couple wishes to change the agreement by consent.

Seeking advice from a family law solicitor in the drawing up of a formal separation agreement

The drafting of the formal separation agreement, indeed the decision to make such an agreement instead of obtaining a divorce, requires careful consideration and the specialist advice of an expert family law solicitor.

Healys’ team of family law solicitors in London and Brighton can advise on all issues arising from relationship breakdown, including provision of maintenance, arrangements for children and division of assets.

Our many years’ experience as specialist divorce lawyers and family law solicitors has taught us that each individual situation is different. Healys can help by listening sensitively and giving you straightforward legal advice so you can weigh up what options will work best for you.

For legal advice in confidence please call direct to Catherine Taylor in our Brighton office by calling 01273 669 124 or send an e-mail to catherine.taylor@healys.com