Separation agreements: the basics

By 26th September 2018 Family Law No Comments

If you are intending to get a divorce or to dissolve a civil partnership, but for whatever reason don’t want to go ahead with the divorce immediately, then you can get a separation agreement drawn up.

A separation agreement can help you deal with bills, mortgage, your children and other aspects of life that that need to be sorted, until you decide to proceed with your divorce.

A separation agreement is technically a contract, in that it can become legally binding, but it can also be challenged in court. We will guide you through some key elements of a separation agreement.

What is a separation agreement?

A separation agreement is basically a written agreement between a couple that hasn’t yet decided whether to divorce or dissolve their civil partnership. The separation agreement sets out the arrangements for things like finances, children and property.

The agreement can be used by married and unmarried couples and can also be used to agree the terms of your separation before you finalise certain arrangements in a divorce. A separation agreement can cover a range of areas such as:

Property

The property is usually one of the main things the couple needs to deal with. Whether it means the property will be sold, giving up tenancy or one party buying the other out an agreement can be drawn up. The agreement includes terms covering savings, investments and debts and also what happens to any items such as cars or furniture that were bought jointly.

Finances

The separation agreement will include a full disclosure of each party’s financial circumstances. There will also be an agreement of who pays the mortgage or rent and household bills.

Maintenance – Children

Childcare arrangements, parental access, school fees and maintenance are also counted in the agreement.

Agreement to live apart

Essential to a separation agreement is be the couple’s acceptance that they will live apart. They may agree a timescale for one or both to move to a new home.

Is a separation agreement legally binding?

A separation agreement is a bit like a prenuptial agreement, although it is a formal legal document, it can never be the final decision on a couple’s financial settlement because the court can always put in place an alternative settlement if needed.  That’s why it’s important that your separation agreement is written by an experienced solicitor.

A solution to this is that a separation agreement can be made into a consent order by your solicitor in the divorce process. By applying to the court, the agreement could become legally binding.

If you want to make your separation agreement legally binding, please contact DMA Law solicitors. Both parties will need to obtain independent legal advice and once you negotiate everything your solicitors will be able to create the separation agreement.

Later, in the divorce process, your solicitor will apply to court for a consent order and make the agreement legally binding (if the court approves it).

Do I need a separation agreement?

A separation agreement can be extremely helpful if you are planning to divorce or if you don’t want to live together. Not everyone needs a separation agreement and it can be as informal or formal as you choose.

A formal separation agreement that has been created by solicitors can help speed up the legal process of a divorce. If you and your partner are in good terms and all you want is to know where you both stand, then an informal agreement could help clarify certain things.

However, it is vital to understand that a separation agreement can be challenged by the court and a court can overlook some or all of its contents if you go on to divorce or dissolve your partnership.

When couples separate, people can change their minds and an informal agreement between a couple will not be enough to protect them.

The court can uphold a separation agreement if either party entered into it with no legal advice, if either party’s circumstances have changed since making the agreement and if either party has not been honest.

 

There is a lot to think about separation agreements and it’s really important that an agreement is properly drafted in order to achieve what you want. Contact us on 01325 482 299 or use our contact form on our website.