A separation agreement is a written contract between two individuals who are contemplating imminent separation or who have already separated. They are useful to both married and unmarried couples.
For the unmarried couple recording arrangements can be extremely important and useful in providing clarity, reassurance and financial stability, when the law is less protecting to cohabitants.
Whilst there is better law to protect married couples or civil partners the clarity, reassurance and financial stability that an agreement provides can be very important to married couples who may not wish to start formal proceedings or perhaps are unable to.
A separation agreement can reduce tension between couples and avoid expensive drawn out court proceedings. Such agreements can be converted quickly and therefore cheaply into consent applications to be lodged with the court when appropriate.
Whilst an agreement is not automatically legally binding in the same way that a financial remedy court order would be, the courts are more likely to uphold one where it has been properly entered into.
This means that:
- Each party should have received independent legal advice or at the very least had the opportunity of doing so before entering into the agreement.
- Both parties have provided full and frank disclosure of their financial circumstances and that the terms of the settlement are reasonable.
- Further that at the time the court considers matters both parties circumstances are similar to when the agreement was made.
I recommend having a separation deed to clients in the majority of cases if there is to be a delay in proceedings, such as anticipated court delay with the divorce proceedings or sale of a property. Verbal agreements between parties often change and vary based upon one party’s interpretation often leading to one party reneging.
In terms of things to include in a separation agreement:
- What to do with any property, including how any equity in the property is to be divided, or if it should be sold and also how it should be maintained such as mortgage, rent, utility bills, both in short term and also long term;
- How any debts such as loans, overdrafts and credit cards are to be managed going forward;
- What maintenance should be paid for a partner or for children;
- Any financial arrangements for children, also if no parenting agreement including some arrangements re where a child or children are to live and how much time they will spend with the other parent;
- Any other relevant factors that are necessary, division of savings, investments, agreement as to future proceedings.
If you need help or advice regarding a separation then please do give me a call.