Couples often decide to go their separate ways but do not wish to enter into divorce proceedings immediately. This can work well for some, but it does leave both parties in limbo, unless action is taken to clarify the legal standing of the relationship.
Entering into a Separation Agreement can avoid quarrels over household bills, possessions, how best to deal with joint assets and how best to help any children involved. These agreements often work extremely well, particularly when separating couples wish to wait for a period of two years before issuing divorce proceedings.
Reaching an agreement
A separation agreement is also known as a Deed of Separation. It records from the start who is to have what and what the parties’ responsibilities are. It can also help avoid the need for court proceedings at a later stage.
How do we agree the terms?
The terms of a separation agreement may be agreed:
- Directly between you
- At mediation
- By negotiation between solicitors
When preparing to draft the separation agreement, each party must:
- Produce full and frank financial disclosure to the other party, showing documentary evidence of their income, assets and liabilities;
- Seek independent legal advice upon the terms of the Separation Agreement
- Sign the Separation Agreement
What is involved in a Separation Agreement?
On receipt of instructions from a client wishing for a separation agreement, we will draft a formal agreement.
The separation agreement includes such information as:
- Age, employment and accommodation
- Details about you and your partner, eg. where you intend to live
- How you intend to split your monies and who will have control of the sale of any property
- Who will pay for what
- Arrangements for any children
- A schedule of both parties' respective income, assets and pension provision
If a couple have successfully agreed to a division of their family assets and the separation agreement has worked well for a period of two or so years, this could form the basis of a Consent Order within the divorce proceedings later on, thus avoiding legal costs in attempting to reach an agreement from scratch.
Is a Separation Agreement legally binding?
An agreement of this kind is not a court order and the court is not involved in its preparation. For this reason, the terms of a separation agreement are not strictly speaking legally binding.
However, the courts are becoming far more willing to consider the terms of a separation agreement when it comes to divorce proceedings later on. Generally speaking the court is likely to follow the Separation Agreement, if it was entered into by both parties:
- With the benefit of legal advice;
- After the exchange of full and frank financial disclosure; and
- There has been no significant change of circumstances, which would render the agreement unfair.
The time it takes to finalise financial affairs at the end of a marriage can be significantly reduced when a separation agreement has previously been drawn up.
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