Are seperation agreements legally binding?

Hello,

So after over 2 years, we have come to an agreement re finances in that ex will basically give me the deposit for a new home. I am happy with this given the financial circumstances. It has all been pretty amicable but today he emailed me a draft seperation agreement which he wants me to check & sign before he releases the deposit amount. This has come a bit out of the blue to be honest as I thought my word was good enough until we get things finalised.

I have told him that I will file for divorce once I'm settled in my new home & we can deal with the paperwork then.- but he wants the Separation Agreement signed now-ish. I assume past of the divorce paperwork will be a Consent Order? If I sign the separation agreement which details the deposit amount we have agreed & also that I will sign properties over to him, we won't claim each other's pension pots, future inheritance etc etc does this replace a consent order drawn up at the time of divorce? Will a judge agreeing the divorce need to be sure that the settlement is fair to both parties & if he thinks not, could the separation agreement then be overturned?

Also, I will get legal advice re the separation agreement but I am a bit confused in terms of where it fits into the divorce process.

Any help you can give would be much appreciated.

Thanks,

Dazed.

no.
anything can be reneged on except a court order.
even then they are but you have to go back to court to get them inforced.

Any agreements etc are not wortht he paper they are written on if the other party wants to take a different ...path, angle, whatever.

A Separation Agreement is a contract and, therefore, a legally binding document. If either of you then fails to respect the provisions of the agreement, the other may take legal action for breach of contract.

However, if not prepared properly then it may not prove to be legally binding. It is, therefore, important that both of you receive separate and independent legal advice.

A separation agreement contains clauses to regulate your separation, deal with the division of financial assets and maintenance and to provide for divorce proceedings after a period of 2 years or more.

A well-written Separation Agreement, prepared by an experienced family law sols can form the blue-print for a Consent Order, when the time comes to write one.

Wikivorce offer a Separation Agreement for £139 - click here for more details.

Actually in England & Wales I would say a separation agreement wasn't a contract and can't be enforced as such. I seem to remember there was a ruling by Thorpe LJ relating to this specific point.

Of course a husband and wife can agree between themselves how to share assets on divorce and when there has been full disclosure, both parties took legal advise and the agreement is " "fair" (ie complies with the law) the agreement may carry considerable weight.

However, a separation agreement is always subject to review and a court may order something different. So a separation agreement doesn't replace a consent order which is legally binding and dismisses future claims.

Xydhias -v- Xydhias [1998] EWCA Civ 1966; [1999] 2 All ER 386; [1999] 1 FLR 683 - The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ said:

"ordinary contractual principles do not determine the issues in this appeal. This is because of the fundamental distinction that an agreement for the compromise of an Ancillary Relief application does not give rise to a contract enforceable in law. The parties seeking to uphold a concluded agreement for the compromise of such an application cannot sue for specific performance. The only way of rendering the bargain enforceable, whether to ensure that the applicant obtains the agreed transfers and payments or whether to protect the respondent from future claims, is to convert the concluded agreement into an order of the court."

Thanks for all your replies - very helpful.

So, Fiona - one final question...if I haven't had full disclosure from ex, I don't take legal advice on this separation agreement but sign it anyway now just to release the deposit, when I file for divorce, will a consent order still need to be drawn up as part of the divorce process?

Basically ex & I have reached agreement on finances between ourselves & although I think he's being honest with me - I'm not 100% sure(he's a master manipulator & financially very savvy). When I file the Petition, will a judge still need to be assured that the settlement is fair to both parties & as such require full disclosure at that point? or will he accept the contents of the sep agreement on the basis that I have already signed?

Sorry, just trying to save myself money & don't want to take legal advice on the sep agreement if I have to do it again for the consent order!

Thanks again,

Dazed.

A Separation Agreement doesnt, and will not replace a Consent Order - which is the court order which sets out the financial aspects of the divorce.

Generally, the court will respect the terms of your separation agreement. However, if a challenge is made to any of the agreement’s terms, the court may issue an order that overrules the terms of the separation agreement. This would only happen if you could show that the terms of the separation agreement are unfair. In these cases the advice of a specialist family law solicitor is absolutely vital to protect your overall best interests.