Are seperation agreements legally binding?

Yes, you will still need a Consent Order. Many people choose not to make a Separation Agreement because the work and costs are duplicated when making a consent order. As Lj Thorpe said the only way to ensure agreed transfers take place and future claims are dismissed is with an court order either "by consent" or imposed by a judge.

There is always a risk that one party turns out not to be trustworthy and it is advisable to have any document drafted by a lawyer before transferring any assets. You may only need documentation that assets have been transferred pending a final settlement but without knowledge and experience of family law you are not likely to understand all the implications and doing it yourselves can be a false economy. Alternatively there is no reason why you can't apply for the Nisi, agree a final settlement and have a consent order drafted and ratified by the court once the Nisi has been granted. If you do this using collaborative lawyers I believe the consent order can be fast tracked through the courts.

A separation agreement is often used by parties who wish to separate by consent but have not yet reached the 2 year point. They want to sort out the finances but cannot formalise these until the divorce process has been concluded. The separaton agreement is the next best thing.

So, the consent order replaces the separation agreement but not the other way around.

The court will take into account all purported agreements whether these are made with or without legal advice although the weight given to those agreements rather depends upon how fair the agreement is. If it falls without the broad range of agreements that the court would order, the court is unlikely to want to interfere with the agreement.

As with all cases, if an agreement is unfair the court will not hold the parties to it. This is the same principle as both parties entering into a consent agreement with open eyes only for the court to reject the agreement due to the apparent disparity that it introduces.

It is worthwhile seeking legal advice to ensure that the agreement that you make is valid - there would be nothing worse than making plans for the future only for the agreement to be overturned if it was deemed to be invalid - for want of a shoe the horse was lost and all that...

Charles

thanks all for your replies. I have one final question for Charles if i may...

So, if I get legal advice for this sep agreement will I still need to get legal advice for the consent order if the contents therein are exactly the same as the sep agreement. I just don't want to pay twice!

Many thanks.

Dazed

If you are both still in agreement getting the consent order is as simple as turning the separation agreement into a consent order in the same terms. They tend to be written with the same layout as a consent order and are easily converted.

The point of obtaining legal advice is to give weight to the agreement in case there is a dispute in the future. If either party seeks to challenge the contents of the agreement, the first question would be 'did both parties obtain independant legal advice?'. If not the agreement becomes potentially unsafe.

Getting legal advice on the agreement ensures that the terms of the agreement can actually be ordered by the court. For instance, a party might agree to pay child maintenance at a specified rate until the children leave school. However, if that maintenance is to be paid for longer than a year, the court has no jurisidiction to make the order.

Charles