If you’re separating but not intending to divorce – take note

Year Published: 2012

If you do not have a pre-nuptial agreement and you are separating, have you given any thought to the legalities if you do not to intend to divorce?

Many couples who separate choose to draw up informal agreements between themselves indicating what they wish to happen in the event of their future divorce or just to reflect the present circumstances.  In the majority of cases, people stand by these agreements but what if they do not? They are not legally binding – even agreements drawn up by Solicitors can be unenforceable if they are not properly prepared, signed and witnessed.

In a very recent case in the High Court, an agreement which reported to give the wife a figure of just under £1,000,000 upon divorce was set aside and the wife was awarded a lump sum of £15.5 million – including £8.3 million representing maintenance.  Clearly this is not what the parties had agreed at the time that they had signed it but the agreement was held to be unenforceable due to a lack of legal advice, being grossly unfair and with an absence of full and definite agreement. The agreement also did not take into account needs of the children.

The implications of this are that if you do separate but do not intend to divorce – either now in the future – it is imperative that you obtain a formal agreement which sets out the separation details in order to prevent any claims in the future.  If drafted properly, such agreements can be legally binding but there has to be a great deal of attention to detail.

For more information please contact a member of our Family team on 01625 442100.

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