Legal Q&A: I am thinking about starting divorce proceedings but would like to consider a separation agreement, will this be legally binding?

A separation agreement is a legal document which formalises a couples’ separation and can set out the financial arrangements arising out of that separation. Whilst not always, a separation agreement would usually confirm and agree a separation date with an agreement to divorce two years from that date. The intention being that the terms of the agreement would be incorporated into an agreed financial order known as a “Consent Order” within subsequent divorce proceedings. 

It is however important to bear in mind that the existence of the agreement does not prevent either party from asking the Court to consider the financial matters arising out of their separation if they are no longer happy with the original agreement. The Court will give the agreement weight, particularly if they feel there is a concluded agreement, but how much weight depends on the overall circumstances.

If both parties have had, or had the opportunity to have, independent legal advice, if both parties made full and frank disclosure and provided circumstances have not changed so dramatically that it would render the original agreement unfair, then the Court are likely to give it more weight but the Judge will still consider all the other factors they would consider within contested financial proceedings.

It is also important to bear in mind that if the parties intend there to be a pension share, this cannot be implemented itself through the separation agreement. The separation agreement simply infers the parties are agreed that there will be a pension share in due course. The pension share can only be implemented once the pension providers have received a sealed financial order along with the Decree Absolute. In addition, although the agreement can show the intention to dismiss all future claims, these will not be dismissed until the Court seal a financial order, whether agreed or ordered by a Judge.

If you would like further advice, please contact Jane Tatlock at Hegarty Solicitors on 01733 295 619 or email jane.tatlock@hegarty.co.uk.