How a separation agreement works

A separation agreement covers arrangements between you and your partner in the difficult time between splitting up and divorce. For some couples, this time may be relatively short, but in other situations it could be lengthy if there is no desire to divorce or if it is not possible to divorce yet. It can also be used by unmarried couples.

Untangling finances, property matters, matters concerning children and other affairs can be complicated and a separation agreement helps couples attain a level of certainty and control. Both parties need to be open with each other about their current financial circumstances, so that the agreement is fair and so that there can be the best chance it can be relied upon.

What can be put in a separation agreement?

The agreement made between you and your ex-partner or spouse will be tailored to your exact requirements and circumstances. The following are some issues that are commonly included:

  • Childcare arrangements, such as where children will live and the timing and frequency of contact;
  • The amount and frequency of maintenance payments for both the children and spouse;
  • Who will live in the former matrimonial home and who will move out;
  • What will happen to the money from any sale of the formerly shared home;
  • Who will pay any bills, such as mortgage payments, rent and utility bills;
  • What will happen to savings and investments;
  • What will happen to assets such as cars or furniture;
  • What will happen to debts such as loans or outstanding credit card balances.

If both parties agree, a separation agreement can be amended at a later date.

Is a separation agreement legally binding?

On its own, a separation agreement is not legally binding, however if the agreement is acceptable to both parties and they subsequently decide to divorce, the judge may include the terms of the agreement in an order. At this point, the agreement would become legally binding. However, it is not guaranteed that a judge would uphold all of the points.

In any event, a separation agreement is considered to be a formal contract and the party who breaks the terms of the agreement may become liable for payment of damages.

For this reason, it is advisable to seek independent legal advice before signing a separation agreement. An experienced solicitor will be able to ensure that your rights are protected and that what you receive is realistic and fair. Your legal adviser would also be able to deal with related transactions, such as the transfer of property or financial holdings and preparation of a new will.

A court is also more likely to uphold a separation agreement where it can be shown that both parties received legal advice before signing.

The benefits of drawing up a separation agreement

A clear, well-drafted separation agreement gives both parties some certainty as to where they and their children will live, their financial means and how their lives will look as they move forward from a split.

As it has been agreed upon by both you and your ex, it should be acceptable to both of you, tailored to fit your exact circumstances and as fair as possible. Because you have both negotiated it, it can help you maintain a civil and helpful relationship, which will be better not just for the parties involved but for any children of the family as well.

If an agreement has been properly considered by a couple, properly drawn up and signed and entered into willingly after each party has received independent legal advice, then the courts will give weight to it, even though it is not legally binding.

It can also be useful in any future divorce proceedings to be able to show that you have both agreed to separate and that you both understand that the relationship has ended. This will prevent either party claiming desertion and allow you to prove the date by which you had agreed to separate.

A separation agreement can be looked at as a roadmap to the next stage of life and is a good way for a couple to move with minimum disagreement through a difficult period.

At Quinn Legal we have experience of drawing up separation agreements that help our clients face the future with some degree of certainty and confidence. We would be happy to talk you through the options available and answer any questions you may have.

Our family team have extensive experience of handling financial, property, children and other matters following the breakdown of a relationship and know the legal processes inside and out.

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