What is a separation agreement?

A separation agreement is a written document in which a couple who intend to live apart set out their wishes, concerning financial arrangements, property, and matters relating to children.

A separation agreement is drafted by family law solicitors following instructions by both parties to a marriage. It is not a divorce petition, although it often acts as a precursor to formal divorce proceedings. Separation agreements are often favoured, since after two years of separation official divorce proceedings become much simpler and more cost-effective.

How does it work?

The main purpose of a separation agreement is to lay down, in a legally observed agreement, the provisions for the division of wealth and the ongoing care of children in the event that a relationship should break down. It is commonly commissioned when a marriage is in the process of breakdown – although normally when both parties remain civil, and wish to establish a legally recognised basis for separation.

If a divorce petition is then served at a later date, the parties can ask the court to formally recognise the terms of the separation agreement.

The divorce courts will only acknowledge separation agreements that are fair to both parties, and as such it is worth obtaining professional legal advice for a family law solicitor to ensure that whatever agreement is reached is capable of being observed by a court.

Each party to the agreement should seek independent advice to ensure that the agreement is drafted appropriately. The separation agreement is not the forum for dispute, and sticks to practical considerations only.

However, separation agreements are flexible arrangements and so anything unique to the parties in question may also be provided for. A common example of this is the future care of any joint pets bought during the relationship, or some possessions of sentimental value.

Children

Child custody is an important aspect of any separation agreement. Key considerations included in the agreement would be:

  • Deciding where the child will live
  • Deciding who will be the primary child-carer
  • Deciding how often each party can see the child

This can be difficult to agree on, and your family law solicitor may well suggest family mediation as a means by which to achieve a suitable agreement.

Finances

The other major consideration is the division of assets and any ongoing maintenance payments. It is worth noting that the court is aiming for any agreement to be fair, having consideration for:

  • The respective financial burdens on each party
  • Provision for the children
  • The income and earning potential of each party
  • The standard of living to which the family had become accustomed

Having such considerations in mind when drafting the separation agreement will ensure that the final agreement is acceptable to the court.

If you feel you are in fact at the stage for divorce, see our alternative information page on divorce and family law.

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