Are Separation Agreements Legally Binding For Divorce?

Are separation agreements legally binding?

When a marriage ends, one of the most significant and sometimes contentious issues to resolve is the division of assets. For some couples, this process may have began with a pre-nuptial agreement, post-nuptial agreement or with a separation agreement, a document that outlines the division of property, finances, and other important matters. However, many individuals wonder: are these types of agreements enough for splitting assets on divorce, or will they need to take further legal steps?

This article explores what these agreements are, their role in dividing assets, and whether it’s enough to ensure a fair and legally enforceable division of property upon divorce.

What Is a Separation Agreement?

A separation agreement is a written document made by a couple who have decided to separate but may not yet be divorcing. It is an agreement between both parties that outlines how they will handle various aspects of their separation, such as:

• Division of property and assets (e.g., homes, cars, savings, pensions)

• Spousal maintenance

• Child arrangements or child maintenance

• Debts and liabilities

  
  

Pre-nuptial and post-nuptial agreements are similar in that they outline what specific assets were brought into the marriage and indicates how the assets will be split (or not split) during or after the marriage.

Legal Enforceability of a Separation Agreement

In the UK, separation agreements are not legally binding when it comes to divorcing, you can attempt to enforce them in court however the judge will ultimately decide whether it is fair and reasonable to enforce it or not; they do have the power to ignore them completely if they feel it necessary.

While a separation agreement can reflect a couple’s intentions and can be a useful guide for dividing assets, it can be contested by either party if circumstances change, or if one party feels that it was unfair or made under duress.

If a couple later decides to divorce, the court will assess the agreement as part of the divorce process but it has the discretion to depart from it, particularly if one party feels that the agreement is not in line with their fair share of assets. This is the same with pre-nups and post-nups.

Can a Separation Agreement Be Used to Split Assets in Divorce?

While a separation agreement can be useful in the early stages of separation to record the parties' intentions, it is not sufficient to legally split assets upon divorce. This is because, in the UK, splitting assets for divorce is a distinct legal process that requires involving the court and getting approved documents from a judge.

You are still open to claims from each other if you do not have a court approved consent order or financial order.

Why Is a Consent Order Essential?

A consent order is essential for a number of reasons. It allows you to legally enforce your agreement if one party refuses to comply with the terms, such as selling property or paying spousal maintenance.

Probably the most important thing about a consent order is that you gain protection from future claims. A consent order ensures that neither party can make future claims against each other’s assets after the divorce is final. This includes claims for spousal maintenance, pensions, inheritances or assets built up with a new partner.

Finally, a consent order also provides certainty and peace of mind for both parties to know that the agreement cannot be changed and is absolutely final. The consent order will override any prior separation agreement, ensuring that it is legally enforceable and cannot be altered later.

Conclusion

A separation agreement is often a good precursor to divorce and can set the framework for how assets will be divided which is especially useful if things are a bit rocky. However, it does not legally finalize the division of assets upon divorce.

A consent order is the only way to ensure that the division of assets and any ongoing financial arrangements are legally binding and enforceable by the courts. Without a consent order, there is a risk that your agreement could be disputed in the future and leave you open to claims.

If you need help with applying for a consent order we offer affordable drafting services and free advice at Clean Break Divorce. Get in touch with one of our friendly advisors today or find out more about our services here: https://www.cleanbreakdivorce.co.uk/consent-order-application

Written by Aaron O'Toole, MSc in Law and Business

Clean Break Divorce