What is a separation agreement?

Date: August 21st, 2018 - Written by: Brookman Solicitors

 

A separation agreement or ‘Deed of Separation’ is often used as a precursor to divorce. You and your spouse or civil partner may not yet be absolutely sure that you want to divorce. Or you may not be able to establish the necessary grounds for divorce but wish to live apart. In these circumstances you can reach an agreement on finances and child arrangements to cover the interim period before either of you issue a divorce petition.

 

Is A Separation Agreement Suitable For Me?

A separation agreement might be suitable in the following circumstances:

  • You need time to decide whether or not to divorce or dissolve a civil partnership but want to ensure there is a clear agreement on financial matters and the children while you make up your mind
  • You have been married or in a civil partnership for less than 12 months and are unable to divorce under the legal grounds for divorce. These require a couple to have been married for at least 12 months before applying for a divorce
  • You don’t want to introduce blame to the breakdown of your relationship. Unless you allege adultery or unreasonable behaviour you can only divorce following two years separation (if you both agree) – five years separation if you don’t agree. A separation agreement can formalise financial arrangements and child matters until you are able to present a divorce petition.

A separation agreement is not the same as a judicial or legal separation, which is a formal process that requires an application to court. If you obtain a legal separation you are still married but not required to live together. Couples that, for religious reasons, do not wish to divorce or couples that need more time to consider whether a divorce is right for them sometimes go down the path of judicial separation.

 

Contents Of The Agreement

One of the advantages of separation agreements is their flexibility. It’s up to you to decide what to to deal with in the agreement. Matters covered might include:

  • Responsibility for mortgage or rent payments
  • Residence: who remains in the family home and where will the children live
  • Sale of family home and division of proceeds
  • Division of financial assets, including pensions
  • How to split jointly purchased items
  • Responsibility for debts
  • Maintenance payments

 

Is A Separation Agreement Legally Binding?

A separation agreement is not enforceable in the same way as a court order. But if both parties have been completely transparent about their finances and have received separate, independent legal advice a court is likely to follow the terms of the agreement in the same way as any contract. Of course the court will not uphold any unreasonable terms in the agreement.

If you do decide to divorce, a properly drafted separation agreement will often speed up the process and potentially reduce your legal costs. If you and your spouse or civil partner are happy with the terms and there have been no major changes in your circumstances since you drew up the agreement, it can be used as the basis for a formal consent order. For advice on divorce and separation please call us on +44 (0) 20 7430 8470.

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