Separation Agreements

If you’re not happy in your marriage or civil partnership, you may not be able to – or feel reluctant to – divorce your partner. For many, a separation agreement is the next best thing, affording you space from your partner but with a mutual agreement in place as to who will live in your property, look after any children and how much maintenance will be paid. An agreement such as this is not currently legally binding, but it may sway the mind of a judge if the argument ever reaches court (for example, if you later decide to divorce).

pre-nuptial agreement

Why would I have a separation agreement?

Usually, people who enter into separation agreements are partners or spouses who have decided to separate but cannot divorce or dissolve their union as neither has been unfaithful or unreasonable within the relationship. They may also have decided not to take the final step of divorce but wish for some boundaries between them until they decide how to take their relationship forward.

A separation agreement offers resolution to any issues in the relationship and supports each party. If both parties are satisfied with the separation agreement, but decide to continue with a divorce, a judge will usually approve the terms of any financial settlement recorded in the Separation Agreement as part of the divorce.

How do I get a separation order?

If you’ve decided separation is the best step forward, speak to Burt Brill & Cardens solicitors and we’ll draft an agreement that takes into account both you and your partner’s needs and wishes.

You may want to complete a transfer of equity in relation to your home – and you and your partner will need to provide full details of your income, assets and liabilities.

Once all of the information has been obtained, we’ll send this to you and your partner (or your partner’s solicitor) for approval. You will then be offered clear, concise and accurate knowledgeable information based on your circumstances and how reasonable the agreement appears.

Simply put, a separation agreement is a contract and is subject to the usual rules of contracts. Those who sign it should consider it an important document, which must be adhered to. Both parties should receive independent legal advice before signing it and be completely honest to avoid accusations of fraud later down the line.

Burt Brill & Cardens can also help you negotiate the terms of the agreement, which can often be complicated and stressful. When everyone is happy with the terms, we will arrange for it to be signed. We can also help you and your partner work out the terms of a Separation Agreement through mediation or collaborative law.

Benefits of a Separation Agreement

A separation agreement can be entered into relatively quickly. A divorce can take considerably longer to finalise and it is also worth noting that in comparison to divorce it is relatively inexpensive to have a Separation Agreement drawn up.

Separation Agreements and the Law

For cases in which a separation agreement is completed, it must be stressed that it is not a final guaranteed solution. Either party can apply to the Court at a later date for further provision and some people take the opportunity to do this when divorce is decided upon. However, the court will take into account the Separation Agreement and its terms may be followed as per the agreement.

In reaching a decision, the Court will consider how the Separation Agreement came about, whether one or both parties failed to make a full financial disclosure beforehand, whether you both attached importance to its terms and how you acted upon them.

What happens if the agreement is broken?

If one or both parties breaks the agreement, it is akin to breaking a contract. The person who broke the agreement may be expected to pay damages to the other party.

How is child maintenance paid under a separation agreement?

The Child Support Act of 1991 does not stop people coming to an agreement about how much child maintenance one or both parties will pay. However, you cannot prevent a partner from applying to the Child Maintenance Service (formerly the Child Support Agency) for a maintenance calculation if you entered into a term of separation with someone after 5 April 1993.

Contentious Probate

An Example Separation Agreement Case Study

Question

“I have recently grown apart from my husband. After a lot of thought and discussion we have decided that it would be best if we went our separate ways. I would like to move out of our jointly owned house. My husband has agreed to give me a lump sum of money in return for my share of the property.

Neither of us particularly wants to start divorce proceedings for the time being, however, we would like to sort out our finances. Perhaps we will look to getting a divorce in a few years time. Is there a way we can draw up a binding agreement without getting a divorce at the moment?…”

Answer

It sounds like your situation is one that could be catered for by a ‘Separation Agreement’ (also known as a Deed of Separation). When a couple stop living together, they can voluntarily draw up a marriage separation agreement. This can set out a variety of things – including how you’d like to divide money, property, investments and items you may have bought jointly.

Child contact arrangements and maintenance contributions can also be defined through a separation agreement. The agreements can be fundamental in helping both parties in a failed relationship move on with their lives – they clearly document and set out future wishes and negate the need for heated discussions or damaging arguments.

As explained above, for the agreement to be upheld by the Court, it must be fair,made with full and frank financial disclosure being given by both parties and independent legal advice having been taken by both.

What happens afterwards?

If you and your partner have remained separated for two years and are happy with the terms of the separation, the agreement can be the basis for a divorce, if you wished to proceed. It can be considered a draft proposal for the order that must be submitted to the court upon divorce.

Make a Free enquiry

If you would like to know more about the negotiation and completion of a separation agreement and whether this would suit you, please contact us.

Call us now on 01273 604123, email us at enquire@bbc-law.co.uk or complete an Online Enquiry. Whether you are based in England and Wales or you are an ex-pat we can help you with your enquiry.

Alternatively, arrange an appointment to see us in one of our offices around Sussex.

Return to Separation and Divorce or find out more about Family Law.