Separation Agreements
A “separation agreement” also known as a “deed of separation” is a written agreement between a couple who intend to stop living together. The agreement will make it clear what is and what isn’t agreed. It sets out what arrangements they want in place for the children, also financial arrangements, including property. It allows couples to know what is expected of them, rather than dealing with uncertainty in difficult times. Sometimes couples choose to separate but decide not to go ahead immediately with divorce, in such cases a separation agreement can be used.
A formal separation agreement may be used when a couple choose to separate but decide not to go ahead immediately with divorce.
A divorce petition can be based on five potential ‘facts’, four in the case of a civil partnership dissolution. You can give 1 of the following 5 reasons for a divorce – the court calls these ‘facts’. Adultery, Unreasonable behaviour, Desertion, you have lived apart for more than 2 years, you can get a divorce if you’ve lived apart for more than 2 years and both agree to the divorce. Your husband or wife must agree in writing. You have lived apart for more than 5 years
Living apart for more than 5 years is usually enough to get a divorce, even if your husband or wife disagrees with the divorce. It takes approximately six months from initiating proceedings to decree absolute or final order. A couple needs to have been married or in a civil partnership for a year before divorce or dissolution proceedings can be started. Some couples will agree that they would prefer to separate and then wait until two years have passed so that they can divorce or dissolve their civil partnership based on their separation during this period.
It is the waiting period from deciding to separate and getting divorced that is the difference for couples who decide to use their separation as the basis for their divorce, the two years and at least six months for the divorce process. Any agreed financial settlements will not be final and binding until a financial order recording their agreement has been sent to court and approved by a judge on paper and the decree absolute has been granted. Only after these two things have happened will there be certainty as to the couple’s future financial arrangements and, if a clean break has been agreed, no possibility of future financial claims by either party.
A formal separation agreement will allow a couple to make clear their agreed intentions for arrangements when living separately. A formally drawn up and witnessed document has scope to deal with all aspects of the couple’s finances, such as who will live in the family home or whether any maintenance should be paid, and should ideally set out the form of financial settlement that will ultimately be presented to the court for approval when the divorce goes through.
There are many things that can be included in a separation agreement, firstly the agreement to live apart and possibly an agreed timescale for either one or both to set up a home elsewhere.
The agreement will likely cover financial issue where appropriate, there may be maintenance to pay either personally or for children. Rent, school fees loan repayments could all be dealt with in the agreement, paying attention to time scales for such payments to be made and how to deal with any changes in circumstances.
Normally a Separation Agreement is incorporated into a Consent Order in the Divorce Proceedings. Full and frank financial disclosure of each party’s financial circumstances is very important for a properly put together separation agreement. Without this, the separation agreement is extremely unlikely to be upheld in case of a dispute in the future about the terms. Should there be a future dispute, a Judge does have the power to overrule the Separation Agreement. This might be because circumstances have changed considerably, or because one or both parties were not legally represented, or where there was fraud or oppression. A separation agreement can be over turned, and the only way to ensure any financial arrangement is final, is with a Consent Order in Divorce Proceedings which states that all remaining claims are dismissed.
Property should almost always be dealt with in the agreement; how the matrimonial home will be dealt with, whether that means a sale, one party buying the other out or giving up a tenancy within an agreement timescale. In addition, the parties will probably want to include terms covering any other properties they own, their savings and investments, responsibility for any debts and the sharing of household contents.
