Separation Agreements

When a couple separate, they often feel it is important to formalise matters but do not wish to start divorce proceedings straight away.

What is a Separation Agreement?

A Separation Agreement is a contract between the parties acknowledging amongst other things that they intend to live separate and apart.

In order for a Separation Agreement to be binding the parties must provide and exchange full details of their financial circumstances. Both parties must obtain in dependent legal advice. Negotiation of the agreement must be conducted through solicitors or a mediator.

The terms of a Separation Agreement can vary depending upon what the parties wish to agree but commonly include:

How financial matters are being resolved.

A date when divorce proceedings will be commenced.

Arrangements for the parties children.

What are the benefits of a Separation Agreement?

It is a contractual agreement which can be enforced in the same way as any other contract.

It’s contents are very flexible.

It can be entered into quickly. A contested court order may not be made for a considerable time.

Entering into such agreement can reduce tension and hostility, as it avoids confrontation and bitterness that is often caused by protracted court proceedings.

The Agreement will evidence what has been agreed in the event of a subsequent dispute or court application.

What are the disadvantages of a Separation Agreement?

The contents have to be agreed.

Either party can still make an application to the court in any subsequent divorce or other court proceedings for an order which is different to the terms of the Separation Agreement. The agreement will in those circumstances, however, be evidence of what was agreed.

A Separation Agreement does not provide the same certainty as a court order e.g. the power of the court to make a financial order on divorce will not be overridden. The terms of the agreement will be taken into consideration by the court, however although they are not binding on the court and may not be conclusive.

Each couple must decide what is best in their circumstances; however it is important to be aware of the advantages and disadvantages of entering into a Separation Agreement, particularly if divorce proceedings are likely to be issued in the future.

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