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Divorce myth 8: You can set out a legally binding agreement in a deed of separation

View profile for Melanie Loxley
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Divorce myth 8: You can set out a legally binding agreement in a deed of separation

You can set out a legally binding agreement in a deed of separation if you do not want to get divorced.

Is it true that a separation agreement will do, rather than a divorce?

Sadly, it is false. Any financial agreement that you reach with your spouse will not be legally binding until it is recorded in a court order.

So, can I get a court order without starting divorce proceedings?

No. The court can only make a final financial order once the Decree Nisi in your divorce proceedings has been pronounced.

But I don’t want a divorce yet – what can I do in the meantime?

If, after taking specialist advice, you are still firmly of the view you do not want to start divorce proceedings, it is possible to enter into a deed of separation (also known as a separation agreement) with your spouse. 

Whilst this deed is not legally binding, it is very good evidence of any agreement that you reach, and is likely to be upheld by the court in any later financial proceedings provided:

  • there has been no significant, unforeseen change in circumstances since the date of the deed
  • the deed is not unjust and it has been entered into:
  • with you both providing full and frank financial disclosure to one another; and
  • with the benefit of sound and independent legal advice; and
  • without there being any pressure upon either party to sign it.

Can we draw up a deed between ourselves without involving solicitors?

It is not advisable to draw up your own separation agreement, since if it has not been carefully drafted and does not comply with the requirements set out above, it is far less likely to be upheld by the court in any later proceedings.

Can we both use the same solicitor to draw up a deed of separation?

No – you will each need separate and independent legal advice.

What happens when we decide to get divorced?

With the help of your solicitors, the deed of separation can be converted into a court order, at which point it will become legally binding.

What if one of us is unhappy with the terms of the deed of separation at the time of the divorce?

In those circumstances, the person who is unhappy with the deed can seek to agree with their spouse that the terms of the deed should be varied. If matters cannot be agreed, either party can make an application to the court. The court will then determine how the finances should be resolved, what weight should be attached to the deed, and if the terms of the deed should be upheld. 

If you want to discuss the pros and cons of a deed of separation compared to divorce proceedings, call our specialist divorce and separation team for a free 15 minute telephone consultation.

I am based at our Colchester office and can be contacted on 01206 217384 or alternatively you can email me at mel.loxley@birkettlong.co.uk.

 

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