There are various reasons why couples may not want to actually get divorced, even though they have accepted that their marriage has broken down and they do want to separate.
Under the current law, unless you wish to put the blame on the other spouse for the breakdown of the marriage, you have to wait until you have been separated for either 2 or 5 years before divorce proceedings can be issued so it may just be that parties don’t feel that they have grounds for a divorce straight away.
Couples may also want to wait until the law changes to allow for a no fault divorce which isn’t going to be until April 2022. There may be religious reasons for not wanting a divorce or couples simply don’t like the idea of a divorce or aren’t ready to take that step.
Does This Mean That Finances Can’t Be Dealt With?
Not at all. Negotiating a financial settlement without court proceedings is exactly the same whether you are getting divorced or not. We consider the same issues, such as the needs of the parties and children and fairness. Negotiating a settlement is a far better way of resolving financial claims than going to court. Bill and Melinda Gates, with all their millions, did just this. They may still have paid a lot of money to the various lawyers they had to help them divide those millions but they must have saved more than double that by not going to court.
Negotiations can take place in various forms, such as discussing the settlement between you, going to mediation or having the help of a family lawyer.
If A Financial Agreement Is Negotiated What Can Be Done To Make It Formal?
Bill and Melinda Gates apparently had a separation agreement. A separation agreement is a contract made between the two of you and it sets out the what you have agreed for the division of your finances.
A separation agreement can also include matters that can’t be included in a financial order, such as arrangements for the children, setting out the time that they will spend with each of you.
It is better than just having a verbal agreement or a letter confirming the agreement, even a solicitor’s letter. This is because it is a valid contract that is recognised by the courts. If your spouse failed to keep to any terms of the agreement then you could ask the courts to enforce it as a contract. A verbal agreement or letter is not a contract so there would be no legal action you could take.
Will A Separation Agreement Make A Settlement Final?
Although a separation agreement is a contract, it is not a court order so it does not provide any finality. It can be changed and further financial claims can still be made until a court order is granted confirming the settlement and that can only be obtained if divorce proceedings have been issued.
Having said that, provided the agreement is drafted correctly and meets certain conditions then it would be considered as good evidence of the agreement that has been reached if it was challenged in court. A separation agreement needs to:
• Be entered into voluntarily and not under duress
• Confirm that you have both given full financial disclosure by both parties. This shows that you each know what assets the other has.
• Set out a settlement that itself is fair and provides for both parties needs and those of the children of the family
It is a good idea to have the separation agreement drafted by a family lawyer even if you have reached the agreement yourself. This is to ensure that it is correctly drafted and that nothing has been missed which could cause you problems later on. Having the agreement expertly drafted could save you a lot of money later.
And If You Do Divorce In The Future?
We can transfer the terms of the separation agreement into a financial remedy order for you which, once approved and sealed by the court as part of the divorce, will be final and will prevent either of you from making any further financial claims.
If you need any help or advice regarding a financial settlement, a separation agreement or divorce, please feel free to contact me on 01530 564498 or via email at a.wilding@timms-law.com.
