Separation Agreement witnesses & consequences

separatedinsamehome

Hello all,

My wife and I have had a separation agreement drawn up which we agree to, wanted to check who we need to have it witnessed by, also what are the consequences of either of us not abiding by the agreement.
Thank you in advance

sassyblue

You can’t have it witnessed by a relative, someone under the age of 18 or anyone who may benefit from what's in the document.

As for the consequences of not abiding by it, it depends what you have agreed upon.  Ultimately any unhappy party could simply apply for a divorce, the negotiations of the divorce and any financial implications will then begin again,

WillowCat

A separation agreement doesn't need to be witnessed.  
It is good practice to have the agreement written up and signed by the parties, but whether it will be taken into consideration in any future financial proceedings (which would happen if one party wishes to not abide by the agreement) depends on several factors, often called the "Edgar principles" after the court case which first recognised that a separation agreement (a marital agreement) can be valid.
The principles are basically that there must be full disclosure between the parties - one way to ensure this is to have a schedule of assets on the actual agreement.   Each party must be aware of what rights they may be giving up - this is normally done by each taking independent legal advice - or at least the party who is 'losing'.  There must be no duress or undue pressure on the parties.  And lastly the agreement must be fair to any children.
https://www.stowefamilylaw.co.uk/blog/2014/07/21/important-cases-edgar-v-edgar-by-john-bolch/
https://www.familylawweek.co.uk/site.aspx?i=ed35009
Ultimately I recommend you take legal advice and get the agreement drawn up by a solicitor.
I didn't and it took many court hearings to get a DIY agreement recognised by the court when my ex husband went against the agreement (the agreement was originally demanded by him!).  I won in the end but it was a few years of intense stress.

separatedinsamehome

Thank you both for the great advice and @WillowCat Am so happy that you were able to get your situation sorted.

KayBur

My question is: if you mutually decided to live separately, then who will violate it? And if there are violations, what kind of consent are we talking about? It just sounds like a reason to send life to each other. If you want to get a divorce, get a divorce and live separately, and do not be like a dog in the manger for each other, that your joint relationship is over, and at the same time none of you can enter into a new one.

TBagpuss

As Willowcat says, it's not a requirement to get it witnessed but it's sensible to do so, not least as in a a worst-case scenario the witnesses can confirm that the person signed of their own accord and without their partner standing there and coercing them to do so!  Ideally, the witness should be an independent adult - so someone not related to either of you(and not any new partner either of you may have!) 

If either of you doesn't keep to it, then the remedy the other has is to apply to court for a fincial order within divorce proceedings - the curt has, in such proceedings, to decide what is fair in the circumstances, with one of the things they consider bring any prior agreements between you.

In effect, a court would normally look at that separation agreement an ask the person not keeping it to explain why it would be fair to allow them to renege on their agreement. Of course, it may be fair if there have been significant and unforeseeable changes in your situation, or if one of you didn't provide full disclosure before you entered into the agreement, or if one of you is claiming that they were coerced into signing (more likely to succeed if the original agreement was weighted against them, and/or they were clearly the weaker financial party and this isn't addressed in the agreement) 

@KayBur  - the most common reason people have a separation agreement is where they don't wish to divorce immediately, often because they don't want to have to use Adultery or Unreasonable Behaviour as reasons for a divorce, and you have to have lived apart for 2 years to be able to use the 'no fault' option (this will change later this year) 
It can also happen when people have married and it hasn't worked out, so they haven't yet been married for a years can't start divorce proceedings, although that is less common.

There are also some situations where it can be of benefit to remain married - for instance if this allows access to private health care or other benefits, where there are family or cultural pressures around divorce etc. 

separatedinsamehome

KayBur said:

My question is: if you mutually decided to live separately, then who will violate it? And if there are violations, what kind of consent are we talking about? It just sounds like a reason to send life to each other. If you want to get a divorce, get a divorce and live separately, and do not be like a dog in the manger for each other, that your joint relationship is over, and at the same time none of you can enter into a new one.

Hi, I didnt request it, my ex wife did. She wants a divorce, which i have no objection to, but someone told her she loses her marital rights to the home if she moves out, which I have explained to her is not true. And as @TBagpuss has said, we have been told we need to live separate for two years before we can get a divorce, good to here that will change. And yes there are family and cultural issues around it, but those are not of as much importance to us now. I am trying to make things as amicable as possible with the least impact to the children, so have agreed to put together an agreement which offers her peace of mind, but also gives me some assurance that she will stick to the timetable regarding the children we have agreed. 

Also just to add to this, my ex wife has already backtracked on alot of things then said they are okay again, so as much as it is for her, it is also for me.

caprikid1

Me and my EX Wife were in exactly the same situation. We were about to draw up a separation agreement at some cost but the solicitor said they were not water tight, it was all very amicable so the route we chose was "Unreasonable Behavior", Ironically to get a divorce on the grounds of unreasonable behavior you have to be reasonable and not contest it. She wrote some points down IE I became insecure due to her constant affairs etc ...  It was all done and dusted quite quickly with all the financials sorted too. It was not bitter or twisted but gave us both the financial closure we wanted. We still see each other once or twice a week and would not hesitate to stop for coffee , there were two children involved, 50/50 split on everything no maintenance.

separatedinsamehome

caprikid1 said:

Me and my EX Wife were in exactly the same situation. We were about to draw up a separation agreement at some cost but the solicitor said they were not water tight, it was all very amicable so the route we chose was "Unreasonable Behavior", Ironically to get a divorce on the grounds of unreasonable behavior you have to be reasonable and not contest it. She wrote some points down IE I became insecure due to her constant affairs etc ...  It was all done and dusted quite quickly with all the financials sorted too. It was not bitter or twisted but gave us both the financial closure we wanted. We still see each other once or twice a week and would not hesitate to stop for coffee , there were two children involved, 50/50 split on everything no maintenance.

Thanks so much for sharing this, this seems the best way forward for us too

caprikid1

Good luck, it worked for us, I did not even officially have a solicitor just let her's draw everything up and paid for someone to sense check it. In my case it helped when someone else was involved as she was keen then to speed things through.

separatedinsamehome

caprikid1 said:

Good luck, it worked for us, I did not even officially have a solicitor just let her's draw everything up and paid for someone to sense check it. In my case it helped when someone else was involved as she was keen then to speed things through.

thank you, makes alot of sense, when I suggested to her we get a mediator she was more proactive, otherwise the cycle was that I would do things to move things forward, i.e. agreements, counseling, flat hunting, research etc, only to have them rejected