If you have reached the often difficult decision to separate from your spouse or civil partner, but have not decided to divorce, then a separation agreement may be appropriate. It provides a framework that outlines how your money, property and parental responsibilities will be divided between you after your separation.
It’s a contractual agreement that establishes the terms of your separation, outlines your decision to live separately, and your ongoing obligations. It provides written evidence of the decisions that have been made and what’s been agreed upon, helping to put the separation process and future discussions on a stable footing.
However, while a separation agreement is a formal legal document when it’s drawn up correctly by experienced legal professionals, it’s not legally binding. Nor is it a court order, and the court will not usually be involved in drawing it up. As a formal contract, it can be challenged in court. This is one reason why it’s important to have a separation agreement drawn up by a legal professional.
A separation agreement can also be made into a consent order as the divorce process develops. This should be drafted by a solicitor and then applied to the court in order to make it legally binding.
A separation agreement can last for as long as it’s required, and there’s no requirement for couples to move towards divorce. However, as time passes, the financial situation and responsibilities of the parties will change, rendering the agreement less effective and liable to challenge.
A separation agreement can be an informal agreement drawn up between the parties where there are wide areas of agreement and remaining trust, but in most cases, it should be drafted by a legal professional. While there is no set pattern for what should be in a separation agreement, a number of key details will usually be included.
The first detail that’s outlined in the agreement is the background to the relationship itself. This will include the names of the parties, how long they’ve been living together, as well as details of any children, either from the relationship or from previous relationships. The actual date of the separation will also be included.
If the agreement is later used in court proceedings it will need to clearly state three basic principles under which it is being made. These allow for the separation agreement to be upheld in court should that become necessary. Firstly, both parties should be entering into the agreement of their own free will, without pressure being exerted. Both parties will also need to make full financial disclosure of all their assets and ongoing responsibilities. Finally, both parties need to indicate that the agreement includes all of the relevant details and that further claims will not be made once the agreement has been signed.
A solicitor will ensure that the separation agreement is comprehensive and meets the criteria required by the courts for it to be considered valid.
A separation agreement will reflect the individual circumstances of the couple. It will set out what will happen in terms of assets and responsibilities, as well as contain clauses that detail what will happen should circumstances change.
This might include what should happen if either party dies, the agreement is breached, or either party remarries or enters into cohabitation with a new partner. It will also include clauses pertaining to other relevant changes such as a change in income or the broader financial circumstances of one of the parties.
The key details to include are:
The single biggest asset that most couples own is the property that they share and this is one of the most likely causes of ongoing arguments and disagreement. For this reason, the value and what happens to the property will be a key part of the settlement agreement. It may be that the couple has decided to sell the property and split the proceeds, or one partner may have agreed to purchase the share belonging to the other. Sometimes an agreement will be reached for the property to be sold only after any children have reached adulthood.
The settlement agreement will clarify what is going to happen to the property, minimising the risk of later disputes and disagreements.
Assets & Responsibilities
Full financial disclosure within the separation agreement will include a full list of the assets and responsibilities of the couple and their value. In the case of cohabiting couples, the list will usually only show those assets that are owned jointly.
Financial assets will be included in the separation agreement and will include potential as well as actual assets. The details and value of any business interests that either party has will be included. The agreement will outline how much money will need to be transferred so that each can take sole ownership of a particular asset.
If a business has been jointly owned, one party may agree to have a clear break from the business, giving up all titles, intellectual property, and shares. Pensions will also need to be considered.
Both parties will retain equal responsibility for any outstanding debts that are jointly held. When couples separate, this doesn’t always mean that both parties will divide repayments between themselves equally. In many circumstances, you might agree that one party pays more reflecting their higher income potential.
One partner may well have put their career on hold to take up parenting duties, and this will be reflected in how much they or can earn. A separation agreement will outline what has been decided.
The separation agreement may also set out the maintenance payments that one party will make to the other in order to provide for children. This might be a lump sum payment, regular payments, or a combination of both. It’s important to remember that the separation agreement is not legally binding, and the enforcement of Child Maintenance Payments will be the responsibility of the Child Maintenance Service.
Parental rights and access will be set out in the separation agreement. It might include the length of time each party will spend with children as well as a commitment from each party to ensure that access is maintained.
To help facilitate the separation, one party may agree to make a lump sum payment to the other party. It will set out the agreed amount and the deadline for payment. It will also usually state that this is the final payment.
Couples can gather a large number of possessions during their relationship, some of which will be of considerable monetary and emotional value. The separation agreement will set out who keeps what and the timescale that the parties will have to organise their division and collection. The parties will also usually agree to take care of these personal effects until the relevant party is able to collect them.
Finally, the separation agreement will also set out any provision for divorce. In most cases, a separation agreement is a precursor to a divorce and the agreement will be the basis on which that divorce is settled.
The parties should work together to finalise their separation agreement and each should seek independent legal advice to ensure that what has been agreed is fair, equitable, and in their best interests. This helps reduce the possibility of problems and disagreements developing further down the line.
Everything should be done by the parties to reach an agreement on the details of any separation agreement between themselves. When this isn’t possible, professional help from mediation and legal services are available.
Services such as a divorce negotiation or family mediation can help you reach an agreement before you approach a solicitor to draw up your agreement for a fixed fee. In some cases, you may ask for an independent barrister review if you’re struggling to agree between yourselves.
If the relationship has broken down entirely, solicitors can negotiate the clauses of the separation agreement on your behalf. In some cases, you can go to arbitration or court to finally reach an agreement.
While it’s possible to find a separation agreement template online that can help guide your discussions, it’s not advisable to use them without legal advice. A separation agreement represents a contract between the parties and involves provision for valuable assets as well as parental responsibilities. If there are any errors in the agreement, then it may not be enforceable should it be taken to the court.
Professional legal advice will help ensure that your document is as comprehensive and thorough as possible and will stand up as evidence should a later dispute lead to legal proceedings.
The cost of a separation agreement will depend on the complexities of the separation, as well as how much legal advice is required. If you would like a solicitor to help you identify and clarify your differences and reach an agreement, then this will cost more than seeking legal advice at the end of the process to just ensure that your document is legally watertight.
Separation Agreements: Fixed Fees & Free 30-minute Consultation
Freeman Jones Solicitors are based in Chester and we provide specialist legal advice in the drafting of separation agreements. In many cases, we anticipate being in a position to draft a separation agreement for a fixed fee of £480.00 inclusive of VAT. We can confirm if you fall into this category following a free 30-minute consultation with you.
If you need specialist advice in this area please contact us today.
Freeman Jones Solicitors are a law firm with a difference. We are totally client focused and provide legal services that are both tailored to our client’s needs and very cost-effective.
About Freeman Jones Solicitors
Freeman Jones Solicitors are based in Chester. Our approach to business is simple, we listen carefully to our clients and then we aim to provide the highest level of professional legal advice while remaining totally client focused. Freeman Jones Solicitors are very reliable, efficient, and sensitive to each and every one of our client’s needs.
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