“I have recently grown apart from my husband. After a lot of thought and discussion we have decided that it would be best if we went our separate ways. I would like to move out of our jointly owned house. My husband has agreed to give me a lump sum of money in return for my share of the property.
Neither of us particularly wants to start divorce proceedings for the time being, however, we would like to sort out our finances. Perhaps we will look to getting a divorce in a few years time. Is there a way we can draw up a binding agreement without getting a divorce at the moment?…”
It sounds like your situation is one that could be catered for by a 'Separation Agreement' (also known as a Deed of Separation). This is a voluntary written agreement drawn up when a couple decide to stop living together. It can set out a variety of things, including how you would like to divide your property, money, investments and personal items.
If you have children, a Separation Agreement can also define child contact arrangements and child maintenance contributions. A Separation Agreement can be fundamental in helping each party to move on with their lives, by setting out their future wishes in a clearly documented way. This helps to avoid an indeterminate period of financial limbo, which can inevitably lead to arguments and an eventual breakdown in communication.
It is important to seek legal advice from a solicitor before you enter into a Separation Agreement and complete your Transfer of Equity in relation to the matrimonial home. You will undoubtedly be advised to fill in a 'Protocol Form E Statement', in which you set out the full details of your assets, liabilities and income. If your husband seeks separate legal advice, it is likely that he will also be advised to fill in this form too.
Once all of the information has been obtained, your solicitor will arrange to exchange your Form E with your husband's solicitor and vice-versa. With all of the details to hand, your solicitor will then be able to give you clear advice as to the reasonableness or otherwise of the proposed agreement.
A Separation Agreement can be entered into relatively quickly once all of your financial information is available. A divorce can take considerably longer to finalise. It is also worth nothing that in comparison to divorce, it is relatively inexpensive to have a Separation Agreement drawn up.
It must be stressed that a Separation Agreement is not a final guaranteed solution as either party can apply to the Court for a variation or further provision at a later date, for example, when they decide to divorce. Nonetheless, on a later application, the Court will take into account the Separation Agreement and its terms may be followed.
In reaching a decision, the Court will consider how the Separation Agreement came about, whether one or both parties failed to make a full financial disclosure beforehand, whether you both attached importance to its terms and how you acted upon them.
For caring and practical advice in relation to Separation Agreements, contact Marie Stock at Burt Brill and Cardens on 01273 604 123 or email mstock@bbc-law.co.uk.
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