Separation Agreement
Q: My husband and I have agreed we need to divorce. There is no adultery or unreasonable behaviour on either side so we will need to separate for two years before bringing divorce proceedings. Can we sort out matters relating to the children and finances before then?
A: Yes. In circumstances such as these your solicitor would normally advise you to enter into a Separation Agreement which would set out fully the arrangements agreed between you relating to the children and any agreement reached regarding finances. To be effective such an Agreement would need each of you to have had independent legal advice and normally the Agreement will have a Schedule attached to it setting out the agreed facts to each party’s financial position. In the vast majority of cases such an Agreement would be binding and can not be changed when divorce proceedings begin. Your solicitor will advise you that once you have started divorce proceedings it is sensible to turn the Separation Agreement into an Agreed Consent Order.
Financial Settlement
Q: My wife and I are divorcing. We have sorted out our finances but our Solicitors say we have to have a Consent Order. Is this really necessary and will it be expensive?
A: You have been advised to have a Consent Order because that is the only way of confirming that there is a clean-break between you and your Wife. If you have reached an agreement with your Wife on an informal basis and you implement that agreement, that does not stop either of you making a claim against the other at some time in the future. Furthermore if one of you dies, the survivor can make a claim against the Deceased’s Estate on the basis that financial matters have not been resolved.
Whether any such claims would be successful would depend on all the facts of the case. The purpose of a Consent Order is to avoid this uncertainty. This then lets both of you start your new financial planning without any worries of a comeback at a later stage.
A Consent Order need not be expensive Provided you were advised by your Solicitors that the terms seemed reasonable in the circumstances of your case, then a Court Order could be drawn up, agreed by both of you, signed by you both and your Solicitors and sent to the Court for a Judge to approve. In the vast majority of cases, the Court will make a Consent Order without requiring either of you to attend Court. Provided you and your Wife have agreed all the terms the costs should not be substantial but you would, of course, need to check this with your Solicitor in each case.
