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Leyla Shahin-Mehrube
Leyla Shahin-Mehrube,
Category: Family Law
Satisfied Customers: 222
Experience:  Family Solicitor at WLH Solicitors
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I am trying to separate from my husband. He has mental

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I am trying to separate from my husband. He has mental health and alcohol issues and can be a very different person day by day. I want to try to keep things civil. Financially I will be having to make a settlement to him. I would like to know if a legally drawn up financial agreement (with full disclosure re finances from me) would potentially be a better / quicker / friendlier / easier option that divorce and then sorting finances. I would encourage mediation before the agreement is drawn up. He is not going to cope well with divorce. Thank you.
Hello, I will try to help. What in effect you are asking is whether a separation agreement is viable for you without divorcing?

Due to the nature and status of the agreement, a legal separation agreement should be viewed more as a contract between Husband and Wife. Therefore it must be comply with the usual contractual principles;

• There must be an intention to create legal relations

• Benefit from independent legal advice

• Benefit from mutual disclosure and be without duress
The most important point to understand is that a separation agreement, whilst persuasive to any judge, is not legally binding upon the matrimonial courts. It is therefore variable and does not have the same security and certainty as a matrimonial consent order.

By obtaining a divorce and consent order a clean break can be implemented which often prevents any further claims being made by your Husband or Wife in the future. It is also fairly difficult to vary a consent order. The same is not true of a separation agreement. This cannot necessarily implement a total clean break which means that financial claims remain open in the future and either party can always apply for further provision.

If you and your spouse decide to divorce at a later date, it is very likely that the costs incurred by entering into a separation agreement will be duplicated when the divorce proceeds. This is because on divorce, you should enter into a consent order which is legally binding and dismisses all future claims allowing for finality and security. Often any consent order will also contain many of the terms contained in the separation agreement the work will need to be repeated. If a consent order is entered into from the outset, there will be no duplication of charges.

It can be very difficult to enforce the terms of a separation agreement because the agreement is a contract rather than a matrimonial court order. Therefore you can only utilise the usual contractual remedies and cannot enforce the document within the matrimonial courts. A binding consent order can only be obtained if you also commence divorce proceedings and is usually a preferable route to entering into a separation agreement.

I hope I have helped. Please accept my answer with 5 stars so I can gain credit for my time.
Customer: replied 15 days ago.
Ok. So if I start divorce proceedings when I can start sorting finances? I am concerned that it will turn nasty. Should mediation be the starting point?
You can start sorting finances straight after divorce proceedings have started and finish the finances before decree absolute. Mediation is definitely the most recommended route to start.
Customer: replied 15 days ago.
Thank you. It’s not going to be easy. Do we have to use solicitors from different firms or can we use different solicitors from the same firm. I am concerned my husband will be encourage to go for maximum as it earns the solicitors a lot more.
I would recommend you both attend a specialist mediation company who will see you both either at the same time or separately. This route is more cost effective than using solicitors for voluntary negotiation. After mediation, one of you can instruct solicitors to draw up the agreed agreement from the mediators for you both to sign.
Family mediation company.
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