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Divorce and Separation -

Legal Help you can trust | Nicola Williams Solicitor

Divorce and Separation -

Legal Help you can trust | Nicola Williams Solicitor

Legal Help you can trust

Nicola Williams Solicitor

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A well-drafted separation agreement will make it absolutely clear what is and what isn't agreed.

A separation agreement is intended to be legally binding and can usually be used as evidence in court proceedings.

However, unless:

  1. you have clearly written terms in the agreement; and
  2. it is entered into without undue pressure on either of you;

it isn't likely to be upheld in the family court.

Remember what looks clear to you may be not be clear to someone else.

When there is a disagreement between two people over what was agreed the separation agreement needs to be unambiguous to be of any real use at all.

The worst type of separation agreement is one which you thought said one thing and in fact can be interpreted entirely differently.

If you want to be sure that your agreement says what you intend, the safest way is to ask a solicitor to draft it for you.

Stamp duty for separated couples

If you are buying a property following a separation from your spouse or partner, you will be made aware of the changes last year to stamp duty rules for married couples and civil partners.

The government has guidance on its website about what you will need to show as evidence that you and your spouse or partner are separated.

It states as follows:

deed of separation executed under seal

If you are married or in a civil partnership and buying a property whilst you still own another with your spouse or civil partner, you will need:

  • a formal separation agreement;
  • written as a deed; and
  • therefore in writing and properly executed.

to show HMRC that you are no longer living together as a couple and you intend this to be permanent.

Your marriage or civil partnership must have broken down in order to claim the exemption for stamp duty.

Separation agreements and changes to property ownership

If you have an agreement in relation to property it is imperative that this is recorded in writing if it is anything other than is exactly on the title deeds themselves.

If you don't know, check.

Having represented many people over the years in relation to property claims, I can't stress enough how important it is to record any agreement about rights in or over property.

You may need to prove many years down the line, possibly even after one of you has died, what you agreed about the shares in your property.

If you can't prove what you agreed, you may lose everything.

When your home is everything, that is particularly distressing. A separation agreement or deed of separation may prevent that.

Property law in England and Wales is very strictly interpreted.

Married couples have some protection in relation to each other whilst they are both alive, but it is very different once one person has died - and there are no special rules at all for unmarried couples.

If you want to be sure your agreement in relation to property is enforceable it must be in a deed and it must be properly drawn up and witnessed.

Finally, any form of document which creates a legal charge over a property must be a deed and must be drawn up by a regulated business such as a solicitor as it is a reserved legal instrument.

Always use a legal service where you can independently verify the training and competence of the person doing the work for you.

Resolution solicitors family law association
Law Society - Nicola Williams

Do I need an official stamp to show that I am separated?

Unlike a consent order on divorce, a separation agreement does not have an official seal or stamp. Usually a formal deed of separation/separation agreement will be accepted at face value by government and local authorities, such as HMRC and council tax offices when you apply for council tax relief and tax credits etc.

You will not have a sealed document as such until there is a decree nisi or absolute of divorce/decree of dissolution.

If you want to apply for a mortgage some mortgage lenders may accept a separation/maintenance agreement to prove receipt of maintenance. However you should check this with the individual lender as some may require a consent order.

If you want to change your name after separation you can use a change of name deed to do so.

Who decides what happens to our property when we have a separation agreement?

You do is the simple answer. You can either talk it through between you or with the help of family or friends or with professional help from a solicitor or mediator.

What if we can't agree?

You would need to consider your options carefully and should discuss them with a mediator or solicitor if you need help understanding your rights and responsibilities. One option is to start divorce proceedings to enable you to apply for a financial order (for example maintenance and property adjustment).

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