While no one goes into marriage expecting the relationship to break down, there may come a time where the relationship is no longer recoverable.
However, not all couples wish to divorce. Divorce proceedings are likely to be difficult and stressful even in the most amicable splits.
Concerns about the cost and complexity of legal proceedings can mean that both parties would rather end the relationship without pursuing a formal divorce. A couple may also intend to divorce in the future but wish to delay it for practical or personal reasons.
Whatever your reasons for not pursuing a divorce, you may still have concerns about your financial arrangements and what will happen to you and your children.
There are a range of options for couples wishing to separate but not divorce.
One of the possible avenues you could consider is a Deed of Separation.
Deed of Separation
Deeds of Separation, also known as Separation Agreements, can be used where a couple cannot (or prefer not to) issue divorce proceedings immediately but they wish to resolve financial, children, and other issues.
You should instruct a solicitor to prepare a Deed of Separation.
The Deed records that the couple intend to live separately and apart and may also refer to a divorce taking place in the future. The Agreement will also deal with financial arrangements.
The Agreement can include, for example, the sale or transfer of the family home with any agreed division of the proceeds together with payment of maintenance.
The Agreement is likely to state that the parties intend the terms of the Agreement to be in full and final settlement of future claims against the other.
Advantages and disadvantages of Separation Agreements
The arrangements provided for in a Separation Agreement are usually adhered to by both parties, since they have reached the Agreement themselves rather than having a settlement imposed upon them.
The Agreement can be entered into relatively quickly, allowing both parties to move on financially without having to commence divorce proceedings.
A Separation Agreement can also set out when divorce proceedings will take place in future, if this is planned.
However, Deeds of Separation are not legally binding, meaning that neither the separating parties nor the Courts are bound to abide by them.
Additionally, pensions cannot be shared or earmarked until the divorce proceedings are commenced, because only the Court can make pension sharing or earmarking orders.
Entering into a Separation Agreement
Both parties should have the opportunity to seek independent legal advice, and there must be no coercion by either party to enter into an Agreement.
Additionally, there should be full and frank financial disclosure by both parties, and the Separation Agreement should be fair in the circumstances.
Although a Separation Agreement will not prevent an application to the Court to consider financial issues, the Agreement is likely to be upheld by the Court if the above matters have been complied with.
Seek legal support for your separation
In situations where couples do not wish to commence divorce proceedings, either at the present time or indefinitely, Separation Agreements can be an effective way to make arrangements regarding children, money, property, and other issues.
However, Separation Agreements are not legally binding, and it is essential to seek independent legal advice before agreeing to any arrangements.
Palmers’ expert family law team can help you draft Separation Agreements and advise you on all aspects of separation, with or without divorce.
If your marriage has broken down but you are unwilling to divorce, it is still essential to seek legal counsel. Contact us today for tailored advice and guidance.