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The solicitor is correct. The updated document does not need to be signed in front of solicitors but should be witnessed by independent adults.
As you are probably aware, the separation agreement can be a formal legal document, if it’s drawn up correctly by experienced legal professionals although, it isn’t technically legally binding in its own right.
A separation agreement is not a court order, and the court is not involved in creating it. It is, however, a contract – so it can still be challenged in a court in the same way as any other contract. That’s why it’s important that it is properly written by a solicitor and the original one was.
A separation agreement can often be made into a consent order later in the divorce courts by applying to the court – so making it legally binding.
Separating couples opt for a separation agreement until they are ready to make its terms final and binding in a later divorce settlement.
They are helpful if you’re planning to divorce, or you have children and finances to divide. A separation agreement can be as formal or informal as you choose, but it is a good idea to have a written record of things you have agreed.
Separation agreements can also speed up the legal divorce process if you have already decided these arrangements in advance – so saving on your legal costs.
The courts attach significance to separation agreements if they are properly drawn up with independent legal advice on both sides. The weight they carry in court depends on the contents of the agreement and the circumstances in which they were made.
So, if a separation agreement is entered into voluntarily by both parties, with the benefit of legal advice, full financial disclosure of both parties, and the terms in the agreement are fair and reasonable – then it is unlikely a judge would interfere to change it.
If you have an existing separation agreement, but later disagree and require the courts to settle the dispute, then there is the chance that a judge may see no reason to vary it when making financial orders and child arrangement orders.
For a court to consider upholding a separation agreement as part of divorce proceedings, it would have to fulfil these conditions:
- Both parties took legal advice before entering the agreement.
- Both parties’ circumstances are broadly similar to when the agreement was made.
- Both parties made full and frank financial disclosure.
The court might not uphold a separation agreement if:
- Either party entered into it with no legal advice.
- Either party’s circumstances have considerably changed since making the agreement, making the original terms unfair.
- Either party did not fully and honestly disclose their financial situation (for example, hiding assets or not declaring an income source).
The court would also be unlikely to uphold any clause preventing either party from going to court to dispute the agreement.
In a later divorce, your solicitor can apply to court for a consent order to mirror the financial terms of the separation agreement and make it legally binding upon you both. You’ll also both need to fill out a statement of information form.
If the judge thinks the agreement is fair and reasonable, he or she will approve it and make it legally binding.
I hope this helps.