Separation Agreement

Article Written By: netlawman

A Separation Agreement is a written agreement – otherwise known as a Deed of Separation – which is suitable for married or cohabiting couples who have agreed the terms for their separation and want to record these terms in a formal legal agreement. By recording the agreed terms in a formal written deed there is no scope for future dispute over the agreed terms. The agreement will be legally binding and can be used for establishing the terms to go in a future divorce petition.

Who to Inform When Your Marriage Ends:

You may need to get in touch with the following:

• Landlord or housing office;

• Housing benefit office;

• Council tax office (England and Wales);

• Mortgage lender;

• Water, gas, electricity and telephone companies;

• Tax office, particularly if you're getting tax credits;

• Your bank, especially if you have a joint account;

• Hire purchase or credit companies;

• Insurance companies, particularly if you have joint policies;

• Post office, if you want mail redirected;

• Your doctor, dentist and child health clinic.

If you and your partner are married, you can separate by an informal arrangement. You will need to inform some or all of the people listed under heading Who to inform when your marriage ends.

However, any informal arrangement made when you separate may affect future decisions if you do ever go to court.

When preparing to draft the separation agreement each party must produce full and frank financial disclosure, showing documentary evidence of their assets and liabilities. Each party exchanges this information with the other. Then the discussion takes place – and hopefully an explicit separation agreement can be drawn.

Examples of what you might want to include in an agreement are:

• To live separately

• Not to molest, annoy or disturb the other partner

• To provide financial support (maintenance) for the other partner. A separation agreement would normally say that maintenance will stop if the partner starts living together with a different partner. Any agreement not to apply to court in the future for financial support does not count legally

• To provide financial support (maintenance) for any children of the relationship. Any agreement not to apply to a court or to the Child Support Agency in the future does not count legally

If unmarried, neither partner has a legal duty to support the other financially either during or after the relationship. However, a separation agreement might include a point that states, for example, that you will continue to provide financial support to your ex unless they start living with a new partner.

The principal advantage is that is allows parties to reach agreement in relation to financial (and other) issues without having to go to Court. Such agreements can also serve to provide evidence that the parties have actually separated and that they consider the marriage is at an end. This may be helpful if proceedings for divorce are commenced at a later stage.

Unlike separation agreements in which the Court has no involvement, judicial separation is dealt with through the Court. The procedure is similar to divorce; however, judicial separation does not actually bring the marriage to an end. It provides evidence that you have formally separated which could be helpful in any future divorce proceedings. It allows you to formally regulate your financial affairs by way of a Court order since the Court have powers to make the same orders that are available on divorce and those can be varied or enforced.

Can I revoke Separation Agreement?

If a couple decides to stay together, they may revoke their separation agreement.

Main features

Key features of the Separation Agreement service

• Separate and apart

• Children - residence and contact

• Obtaining divorce by agreement

• Finance - clean break ( where applicable)

• Lump sum payments

• Maintenance for spouse

• Additional maintenance such as school fees

• Child maintenance

• Terminating events such as death or remarriage

• Variation of agreement for maintenance

• Occupation of family home

• Transfer of family home

• Release from mortgage

• Sale of family home

• Transfer of family company

• Life insurance policies

• Pension provision

• Agreement to leave by will

• Contents of family home

• Other assets

• Credit cards and unsecured debts

What happens if we have a Separation Agreement and then get Divorced?

Should you and your spouse subsequently divorce, provided your Separation Agreement is drawn up properly and is reasonable, a Court is unlikely to interfere with it and will usually seek to uphold the provisions contained in it.

Future Amendments in Separation Agreement

A well drafted separation agreement will allow for future amendments by either direct written change by both parties or a process of mandatory mediation or, as a final alternative, resort to the courts.

Reaching an agreement with your partner is not necessarily the end of the story. You need to make sure that the terms of the agreement or court order are carried out. If one of you does not comply with the agreement, and if you are unable to sort out any dispute or misunderstanding (either directly or with the assistance of solicitors) then it is possible that an application would need to be made to court.

If you were not married or in a civil partnership, then you or your former partner can probably enforce any written agreement that was made as a contract and ask the court to uphold its terms and force you or your former partner to comply.

If you were married or in a civil partnership, then there are a range of enforcement options potentially available to you. Exactly what you can do will depend on the type of obligation that your former spouse or civil partner has failed to comply with. For example:

• The court could order that maintenance payments are paid directly from salary.

• The court could place a charge against a property owned by the person who failed to pay you a lump sum of money and for the property then to be sold.

• As a last resort, the court to send your former spouse or civil partner to prison.

• The court could enforce maintenance payments for children

You should speak to a solicitor about which of the options may be best for you.

Enforcing a court order can be expensive and take time, so you need to bear in mind the potential costs of taking action as against the benefit of enforcing the agreement.

There are some drawbacks to Separation Agreements, including the fact that they are harder to enforce than a Court order.

In addition, a Court can, following an application by either of you in subsequent proceedings, make orders that differ from the provisions of the agreement. However a Court will only alter the terms of a Separation Agreement with good reason, for example, if the agreement is unfair or defective.

An error in properly identifying property rights in a separation agreement, or failing to note the intentional omission in the other party's do-it-yourself draft, could mean a significant financial difference to the trusting but naive spouse, in their old age.

Therefore, it is highly recommended to take formal legal advice so that one of the parties to the agreement cannot subsequently claim that they did not understand all of the contents of the agreement.

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