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My wife and I are separated and are going to wait two years for a divorce but should we have some type of agreement in writing?
My wife and I are separated and she is willing to wait two years until the divorce but we have nothing in writing as yet. What is my position regarding an agreement? The home is in my name only which I owned before we became involved, is she still entitled to half? I am living in the house at the moment but if i start any proceedings I will make myself homeless that much quicker as I can't afford to buy her out. Should I wait until she starts proceedings? We both want to try and keep it friendly so what's the best way forward?
You can record any agreement that you reach about children, money and property in a formal document. This is sensible because you can draw it up in a way that makes it enforceable if your partner does not keep to what they promised. You will need the help of a Solicitor to do this. The document is called a 'Deed of Separation'.
A Deed of Separation can cover all the financial arrangements between you and your partner. It can also deal with what you have agreed about the children, and any plans that you may have to divorce, or not divorce, in the future.
A Deed of Separation is not binding on a divorce Court. If you later divorce, you may need to make your agreement binding by a financial order made as part of the divorce.
You and your partner should each have separate legal advice before you sign such a legal agreement. You should have told each other all there is to know about your own financial positions.
If you divorce after making a Deed of Separation, you can agree to keep to the terms of the financial settlement in the Deed. If one or both of you want the Court to make other financial orders, the Court has the power to do this, even if you have a Deed. However, if you were each given proper advice by Solicitors when the Deed was drawn up, and you were both honest about your financial position, the Courts will be reluctant to change the original arrangements. They may only be able to do this if circumstances have changed in a way that makes the terms of the Deed unfair.
The house is the former matrimonial home regardless of whose name it is in and your wife may well be entitled to a share of the equity. If you commence divorce proceedings the Court has various powers available and can make Orders such as:
(a) a transfer of property from one party to the other or of joint property into the sole name of one party;
(b) a transfer of tenancy from one party to the other or a joint tenancy to the sole name of one party;
(c) a sale of property owned by one or both of the parties and a related distribution of the proceeds to either one or both of the parties;
(d) a payment of a lump sum from one party to the other or to a relevant child of the family;
(e) a future payment of a lump sum or maintenance to one party out of monies which are due to be received by the other party upon retirement or death in service;
(f) a variation of a party’s pension provision for the benefit of the other;
(g) a variation of any financial agreement made before or after the marriage;
(h) a charge in favour of one party over the assets of another;
(i) secured provision in respect of maintenance.
The Orders listed at (a), (c) and (d) above may be deferred until the remarriage, or long-term co-habitation, of a party, a minor child/children of the marriage reaching a specific age or ceasing full-time tertiary or higher education, or other pre-determined event.
In considering an appropriate settlement many factors need to be taken into consideration in order to decide what the appropriate settlement should be. Factors considered include length of marriage, age of parties, other assets and resources and each party’s needs. This list is not exhaustive and it is impossible to give comprehensive legal advice without being in receipt of both you and your wife’s financial positions and all the facts in your particular circumstances.
We can refer you to a firm of solicitors that offer a fixed fee service for preparation of Separation Agreements and various divorce service, in the first instance they can call you and discuss the service
further on a no obligation basis and without charge. Please e-mail if you would like us to make this referral.
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