Separation Agreement

Deciding to put in place a formal separation agreement is a sensible way of creating some stability and certainty at an inherently worrying and upsetting time.

Putting an agreement in place is especially useful where the parties have agreed to separate for an extended period before going ahead with a divorce, and where a couple own property and have children.

Potential reasons to enter into a Separation Agreement

• To record the fact that the parties have separated, which may have an impact on the division of the finances in the event that the parties proceed with a divorce at a later date;
• To assist in ascertaining at an early stage what the assets and liabilities are and how to divide these in the event that the parties proceed with a divorce at a later date;
• Dealing with ongoing financial commitments during the separation period such as mortgage payments and other outgoings; and
• Where there are children, ensuring that an agreement is in place to meet their ongoing needs and establishing new or interim living arrangements. This may include setting out the arrangements where the parties continue to live together under the same roof or where one party vacates the family home, as well as when and for how long each party will spend time with any children of the family.’

Are Separation Agreements legally binding?

Separation Agreements are entered into voluntarily between the parties, but they are not strictly legally binding and do not have the weight of a formal financial consent order on divorce.

However, a written separation agreement can be presented to the court as compelling evidence of the parties’ intentions at separation in later divorce proceedings. In certain circumstances, the terms of the Separation Agreement can be considered strong evidence by a Court.

Can one lawyer act for both parties?’

No, separate legal advice is needed for each party.

If you require advice in relation to a separation agreement or regarding the legal implications of separation, please contact a member of our experienced family team.’

The legal process of ending a marriage or civil partnership can have a major emotional and financial impact on all family members. This is why we endeavour from the outset to devise a plan of action, in order minimise the impact on you.

Divorce is based upon a no fault system, but it nevertheless remains necessary to establish to the satisfaction of the court one of the five grounds set out below in support of establishing that the marriage has irretrievably broken down.

Clean break divorce

Divorcing parties sometimes have no matrimonial finances to settle as the marriage has been short or they have not had the opportunity to build up any assets.

In some circumstances both parties may have similar levels of income or simply do not want to claim maintenance from the other and would rather a clean break and go their separate ways.

In these types of cases it is prudent to enter into a clean break order. This formal document is filed at Court as part of the divorce process. It is signed by both parties and their legal representatives and is therefore binding.

If you need experienced family lawyers in London to explore the possibility of seeking a clean break divorce settlement, please do get in contact.

Potential advantages of a clean break

The most important component of a clean break consent order is the fact that it dismisses all future claims against each other, following the divorce.

Without this, either party (so long as they have not remarried), could make an application to Court for financial settlement or relief despite having been divorced for some time.

An amicable divorce is of course preferable and therefore whilst matters are non-contentious it is important to draw a line under each and every aspect of the marriage legally.

‘It is a common misconception that getting a divorce terminates everything between the parties. This is incorrect.

Informal agreements on finances – beware!

I conducted a case whereby the parties during divorce agreed to one of them keeping the house and the other the family business. The assets were split and the formal transfers were completed.

At the time, one party thought it would be a good idea to write the terms of the agreement down, but the other thought it unnecessary and so no formal agreement was recorded. Some five years later when financial circumstances had drastically changed for one of them, an application to court was made. The normal court process ensued, despite attempts to rely on the previous agreement, and disclosure based on current assets, income and needs was exchanged. This would have been avoided had the terms of the original settlement been formalised and sealed by the Court.

Unless there are compelling reasons, such as mistake, non-disclosure or a major supervening event, such orders cannot be revisited or changed. Therefore certainty and protection is provided for by having a clean break properly documented by divorce lawyers and in a formal court order. This also potentially saves vast costs in the future.

For advice on obtaining a clean break or in relation to the division of finances on divorce, please contact our expert family lawyers.

Children and Parenting

Streathers family law team are highly experienced in assisting with all aspects of children law, including residence, contact, financial provision, adoption and guardianship.

In all matters relating to vulnerable parties such as children, it is essential to ensure that  you get the right legal advice from the right lawyer. Please get in contact to find out how we can help.

A child arrangements order determines and formalises where a child will live. These orders are often also described as residence orders as this was the legal term and label used by the courts until fairly recently.

The Children and Families Act 2014, which came into force in  April 2014, replaced contact orders and residence orders with child arrangements orders. These cover the following matters:

• Who a child should live with, have contact with and spend time with;
• When a child is to live, have contact and spend time with that person.

The child or children’s welfare is the most important factor in determining issues of contact or where a child should live and the child’s best interests are given paramount importance by the courts.  When the courts are making a decision around a child’s welfare, the starting point is a “welfare checklist” which is contained in the Children Act 1989.

Residence and contact issues – mediation first

Before applying to court for a child arrangements order, you are required to attend a meeting with a mediator (called a mediation information and assessment meeting, or a ‘MIAM’), unless you qualify for an exemption. It is often advisable to attend mediation with the other party to see if suitable arrangements can be agreed outside of the court procees, as if successful, this will save you both considerable time and money on legal fees.

Act reasonably and put the children first

Before an application is made to a Court it is strongly advisable to be seen to have attempted to resolve any concerns or issues. If relations are strained or there are genuine concerns about more contact, different contact or contact at all, it is still important to attempt to resolve these. Good family lawyers not only provide sound legal advice but can also help to mediate and/or clarify each party’s intentions. If you are a parent or guardian and a contact request is made, simply refusing or ignoring this is not a sensible idea unless there are prevailing safeguarding or child welfare concerns. Similarly, an application to court without any attempt to explain or agree with the primary care giver is also ill-advised.

Who can apply for contact?

Applications can be made not only by a child’s parents but also a step-parent, grandparents or by anyone who has parental responsibility in law relating to the child.

Making an application for child contact or residence

There is a court fee payable and a formal application process must be followed in order to ask the court to consider issues relating to child contact.

What are the types of contact?

Direct contact–  this is contact with the child in person, but in certain situations such contact may be subject to supervision from a third party or by social services.

Indirect contact – means contact other than face to face. There may be good reasons why a court will only allow indirect contact, perhaps at least for a period of time. Practical reasons can include where a parent lives a long distance away or they may be in prison. A period of indirect contact may be appropriate also if the child has not had contact with that parent for a long time.

Regrettably, it is not uncommon with contact orders for there to be friction between the adults. Another scenario is where a parent has been unreliable and let the child down in the past, or perhaps not complied with previous agreed residence or contact arrangements or court orders. In these situations, contact orders may be very specific about times, dates, places and other aspects to seek to ensure compliance and consistency for the child.

Breach of the terms of a Child Contact Order

A failure to comply is a serious matter and can open up the possibility of imprisonment or a fine.

Making decisions about children after divorce  – specific issues

It’s not unusual for parents to be able to agree on the basics of where the child will live, perhaps mostly with one parent and the other parent at weekends. It’s important to understand that residence orders can also cover other issues which overlap with more contentious children related applications. For example, where a parent is the primary carer  who the child lives with, that parent can legally go abroad with the child for up to a month without having written consent from the other parent. However, it is good parenting to notify the other parent and agree arrangements in advance.

Issues which can be particularly contentious and problematic can include :-

• where the children will attend school and what type of school;
• if parents will in future live in different countries;
• religious upbringing.

If you need legal advice in relation to the arrangements for your child or children, please do get in contact with us. Our family law specialists in London have significant experience with all aspects of children law and our solicitors will be happy to discuss your situation and provide you with advice and guidance.