A separation agreement is made between a couple when their relationship breaks down. It can be made by those who do not want a divorce at the current time or where it is not possible to obtain a divorce. It can also be used by couples who are not married.
What can be included in a separation agreement?
A separation agreement aims to set out how a couple will deal with joint assets, liabilities and responsibilities. You can include any issues you like within the agreement, with the most commonly addressed points as follows:
- Where children will live and what time they will spend with each parent
- How much financial support will be paid for the children and by whom
- Agreements in respect of contact with other family members, education and travel
- Who will live in the family home, whether it will be sold and when
- Who will pay the mortgage or rent
- Who will pay the bills
- How assets will be divided
- What will happen to joint debts and liabilities
Is a separation agreement necessary?
While a separation agreement is not essential, it can be very useful to have an agreed roadmap so that both parties know what is expected of them going forward. This can reduce the chances of disagreements arising in the future in the event that someone’s viewpoint changes. If the only agreement that exists is a verbal one, it may be easy to challenge this or for recollections to differ.
A separation agreement can give you some breathing space to consider whether you want to proceed with a divorce by giving you stability in the interim.
It can also help to have a separation agreement in place if you do decide to divorce, as it may be possible to use this as a basis for a consent order.
Is a separation agreement legally binding?
A separation agreement is not legally binding, however if it has been properly drawn up and a number of issues addressed then the court is likely to respect the contents if called upon to make an order.
The following points will ensure that a separation agreement has the best possible chance of being followed by a deemster:
- Both you and your spouse or partner took independent legal advice before signing the document
- Your circumstances have not substantially changed since the agreement was made
- Both parties made full disclosure of all assets and liabilities to each other before the agreement was signed
If the above points are satisfied and the separation agreement does not unduly prejudice either party or impact negatively on any children then a deemster may well follow the terms of the agreement when making an order in divorce proceedings. It can help make the divorce process quicker and more efficient with less scope for argument.
If you and your partner are separating and you would like to discuss having a separation agreement drawn up, we will be happy to advise you.
We can talk through the various options and help you negotiate a robust settlement agreement that will give you certainty in the difficult time following the breakdown of a relationship.