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Harris, Family Law Expert
Category: Family Law
Satisfied Customers: 2851
Experience:  Family Law - Specialist in Divorce, Financial Relief and Children Matters
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My Husband and I are living apart and are happy with

Customer Question

Hello,My Husband and I are living apart and are happy with the situation at the moment. We have written up a separation agreement which we both consider fair. We have agreed that if in the future we decide to divorce we will use that to support our requirements on money, property and the children.The separation agreement makes it clear that savings, shares or pension sharing will not be considered by either party but the question I have is, how can I make this agreement legally binding so that it stands up in court if we did decide to divorce in years to come? My pension and shares form a big part of my future financial stability and I want to protect them from any potential claim from my Husband. Is there anyway I can future proof them? My Husband does not have the level of pension and shares I have so there is a risk that he may have a change of heart and want to claim a portion and that possibly the courts will support him.Thank you
Submitted: 2 years ago.
Category: Family Law
Customer: replied 2 years ago.
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Expert:  Harris replied 2 years ago.
Hi, thank you for your question. Please confirm how old the children are and what the arrangements for them is between you and your husband. Given that you are married, the law in relation to such agreements is complicated but briefly, any agreements such as separation agreements regarding assets are not legally binding. They can be referred to as part of any future court proceedings regarding the finances, but the court has the power to overlook the agreement when considering the needs of both of you and the children. You should also be aware that if you remain married, in the event of your death your husband has an automatic right to parts of your estate, and your pension if there is no will in place. Even if there is a will in place and you pass away whilst married, he can make an application to court to obtain some of your estate to meet his needs. Please provide a positive rating if you found this helpful. I will not be credited with answering your question without a positive rating. Thank you
Customer: replied 2 years ago.
Also, please could you let me know if in years to come, we did decide to divorce, would our agreement need to be reviewed by the court or because it was an agreement we were happy with, that there would be no reason for the court to get involved?My children are 13 (daughter) and 14 (son). My daughter stays at my house full time but my Son sleeps at his Dads 2 nighths a week.
Expert:  Harris replied 2 years ago.
Thank you - and how long have you been married?
Customer: replied 2 years ago.
Been married 17 years. In relation to automatic right to my pension after I have deceased, the specific terms of my pension state that if living apart, the spouse has no claim on the pension.
Expert:  Harris replied 2 years ago.
Thanks for the confirmation. In relation to the pension, despite what it states in the terms he will still be able to apply for an order regarding this. If divorce proceedings are issued, either of you can make an application to court for financial relief - this right to apply only ends when the applicant of potential proceedings remarries or if a court order is made or approved regarding the finances. You will both need to provide each other with full and frank financial disclosure, to include at least 12 months bank statements and disclosure of all assets, income and liability. The court's starting point will be a 50-50 split of all assets. Given that it is a long marriage and you are the main carer of the children, it would be expected that your needs would be greater and therefore the court will likely depart from a 50-50 split of the assets. The court will take into account all the facts of the case and the following criteria when reaching a decision regarding the finances:1. The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;2. The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;3. The standard of living enjoyed by the family before the breakdown of the marriage;4. The age of each party to the marriage and the duration of the marriage;5. Any physical or mental disability of either of the parties to the marriage;6. The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;7. The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;8. In the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring. You should also be aware that prior to commencing an application to court, the court will need you to at least attempt to settle the matter without issuing an application. You will therefore need to consider whether mediation is suitable. You can find local mediators here: The mediator will assist you both in reaching an amicable agreement and if mediation fails or does not proceed, you can then pursue the matter to court. The Court will also consider the separation agreement you have entered into, but does not have to agree to approve it if needs have changed or the agreement does not adequately provide for everyone. Please provide a positive rating if you found this information helpful. I will not be credited with answering this question without a positive rating. Thank you
Customer: replied 2 years ago.
Would the process still apply if you apply for a divorce after 2 years separation, which is uncontested and both parties are happy with the arrangements already in place for children, money and property ?
Expert:  Harris replied 2 years ago.
Yes, this will remain the process until the potential applicant remarries after divorce or the court approves an agreement or makes a court order settling the finances. Basically, if the financial settlement is not approved by the court as part of the divorce you will be open to a financial relief claim (even after divorce) until your husband remarries or dies.
Customer: replied 2 years ago.
I don't really have any interest in getting divorced. I am happy just separated. Could I not get some sort of legally drawn up document to make the separation agreement binding so that in the event of a divorce it carries significant weight?
Expert:  Harris replied 2 years ago.
Unfortunately not, as the court has to consider all the circumstances of the case at the time of the divorce and consider the assets at that time. The court will consider the separation agreement but it cannot be made binding. What are the reasons for not pursuing a divorce? In the event that this cannot be pursued you can consider judicial separation proceedings, during which you can have a financial agreement approved the same as with divorce proceedings.
Customer: replied 2 years ago.
Good question....a number of reasons 1) The finality of it all 2) In my mind marriage was for life 3) Hoping that one day my Husband would wake up and want to be part of the family again and not spend his time having a 'mid life crisis'.
Expert:  Harris replied 2 years ago.
Thank you - I appreciate the reasons, but in terms of your and your children's financial security, there is no finality if the court does not approve a financial settlement which can only be obtained once divorce proceedings or judicial separation proceedings have been pursued.
Expert:  Harris replied 2 years ago.
Hi, this question remains open. If you found my information provided helpful please could you rate my response positively as I will not be credited for my response without a positive rating. Thank you