JUST SEPARATING?
For some couples divorce is not something they wish to pursue on an immediate basis. There are a number of options open to couples in this situation. Some require co-operation between the parties and in all cases complete finality cannot be guaranteed as this only comes with a court order in divorce proceedings. We can advise you on your options and discuss with you advantages and disadvantages depending on your circumstances.
Separation Agreements
If you and your spouse can agree how to divide your financial assets you can enter into a Separation Agreement. This is a contract between separating couples. Separation Agreements cannot bring financial claims on divorce to an end as only an order in divorce proceedings can do that. However the agreement can identify the intentions of the parties and will carry a significant amount of weight with the court if there is any later dispute over financial claims.
For a Separation Agreement to have real value the overall agreement must represent a fair bargain. Each party should have fully and frankly disclosed their financial circumstances to the other which ideally should be recorded in schedules annexed to the agreement. Independent legal advice for both parties is essential. As family lawyers, we are frequently asked to act for both parties simply to draw up an agreement between them. Independent advice for each party is imperative as it is impossible to advise two parties where there may be conflicting interests. The agreement should not be entered into under duress or mistake.
If a separation agreement has been prepared properly, the court will have to find good reason not to uphold the agreement at a later date. Collaborative Practice and Mediation can both assist couples in reaching a settlement.
Whilst the separation agreement can provide for all future claims there are some things which can only be made enforceable by a court order. This would include orders in relation to pensions and dismissal of financial claims.
Judicial Separation Proceedings
Where for whatever reason one or both parties does not want to get divorced on an immediate basis, Judicial Separation proceedings provide a formal structure for separation. It also provides a forum before the court to enable the court to determine financial claims. As judicial separation proceedings do not bring the marriage to an end it is not possible to dismiss financial claims or to have certain types of pension orders.
Applications for Maintenance
It is possible to apply to the Magistrates Court for orders to provide for spousal maintenance if one party to the marriage is failing to fulfill their financial obligations. The court have the powers to make orders for maintenance where the parties are separated an on party refuses to maintain the other.