What is legal separation?
The first thing you need to establish before you embark on the route of a separation is why a separation is distinct from a divorce and how. This will determine the options available to you, and which is the correct route for you.
The words ‘legal separation’ are often used to describe a decree of judicial separation. This is the route you would pursue if for religious reasons you are not able to divorce yet still require the full assistance of the Court process to obtain a financial order. It can also be used if you are of an age where pension is important and you need to preserve a widow’s benefit under the terms of your spouse’s pension.
Why separate rather than divorce?
There are many other reasons for electing to separate rather than divorce. You may not yet have established that your marriage has broken down irretrievably. You may have no grounds to issue a petition for divorce on an immediate basis. You may simply want a trial separation. In any of these scenarios you may require some way of regulating your financial affairs. If so a separation agreement is the document you require.
What will a legal separation agreement contain?
Ordinarily, the agreement will set out the date of your separation and explain that you and your spouse intend to live separate and apart from that given date. After that it will contain various terms regulating what you have agreed between you, whether that relates to how much maintenance is to be paid or how the capital assets are to be divided. It can contain as much or as little as you want it to.
Is a legal separation agreement binding?
A separation agreement does not prevent your spouse from making a financial application within any subsequent divorce proceedings. If you each had legal advice at the time you reached the agreement and the terms you agreed are still fair, the Court is likely to follow the terms of the agreement entered into. The Court retains the final say as to whether the terms agreed should be translated into an order within any later divorce proceedings. The terms if translated into a Court order will then become binding on both of you and there will be no further opportunity for you to revert to the Court for further provision other than to vary an existing and ongoing maintenance order.
Talk to IBB Solicitors today for legal advice on separation
If you would like to discuss any aspect of family law, are considering divorce proceedings or a trial separation, or want to draw up a pre or post-nuptial agreement, call us in absolute confidence on 03456 381381. Alternatively, email us at email@example.com.