When should you get a legal separation agreement?
When separating from your partner you need to consider where you're going to live, how you divide up any money, belongings or assets that you share with your ex-partner, how you will pay the bills, as well as various issues concerning your children.
The agreement can be signed in front of separation solicitors and is legally binding. It can help resolve issues such as custody, contact, access, education, finances, property and any future divorce proceedings.
Please note a separation is not a divorce and does not legally bring your marriage to an end.
A well planned separation agreement can be a cost effective solution for couples looking to reach an amicable resolution to their relationship issues.
It allows couples that are separating or thinking about divorcing to reach an agreement about their responsibilities to each other and their children without a need to go to court.
The outcome of an agreement should be voluntary and can be made into a legal separation agreement. The agreement is useful in instances where there's no wish to divorce immediately or other where there are no particular grounds for divorce.
There may also be instances where religion plays a part in forbidding you to get divorced and as such you don't wish to get divorced, but wish to separate.
If the marriage does end up going to court during a divorce, the court will usually take the separation agreement into account should there be any dispute. They do have the power to overrule it in certain circumstances, however.
What does a separation agreement include?
The most common form of Separation Agreement is made without any court intervention and covers important issues such as:
Where you live
How much each party must contribute to the mortgage and household bills, as well as who lives where.
This could include any debts and how these will be split between you. If you decide to sell your home, this could also include how you split the money. You may also have joint bank accounts and savings.
Arrangements for children including visitation, access & education. Where will the children live, how often will they see each parent and where. Who pays what for the ongoing maintenance of the children.
How you’ll divide your property and its contents, for example furniture or electrical items.
Are there any downsides?
The agreement can be harder to enforce than a court order. The court also has the power to make orders that differ from the terms of the agreement in instances where it is deemed unfair to either party.
What does the agreement look like?
The following are some examples of what you might include in a separation agreement
Identification of both parties involved e.g. names, addresses, dates of birth and those of the children where relevant
Confirmation of independent legal advice
Acknowledgement that the relationship has broken down but you're keen to avoid blame
Residential agreements, for example who will live where
Plan deciding who will have what contact with each child and plan for any other contact lost due to illness or other reasons
Education plan: where the child will be educated and the role each party plays in attendance to school functions such as parents evenings
A non-relocation clause could state that neither party would move away without the consent of the other and that the future cost of contact with children would be the responsibility of the party that has moved away
Arrangements including maintenance and lump sums
Agreements by each party that they will continue to support themselves and maintain the child when the child is living with them
Any other agreements including inheritance issues
Why you need a solicitor for a legal separation agreement
A law firm can offer you advice, let you know your options and help you understand the cost of legal separation. They can also advise you and work with other solicitors and the solicitor of your ex-partner to create a formal agreement.
While a separation agreement is not necessarily legally binding, a judge will commonly view it as a formal agreement where it has been drafted by a recognised solicitor and can also turn the agreement into a consent order and this will finalise your divorce in the eyes of the law further down the line.
A solicitor can also provide you with legal advice to ensure the agreement is fair and legally robust, drafting the agreement for you to sign.
Can you do a separation agreement without a lawyer?
While it is not a legal requirement to use a solicitor to draw up a separation agreement, getting the right legal advice from the start can help you keep costs low later on.
You can also get advice on why you should not sign the agreement before you go ahead.
Your separation agreement is more likely to be robust if you taking independent advice from a solicitor as well as providing full financial Disclosure.
What if the agreement is broken?
The Separation Agreement acts as a contract and the party that breaks the contract can expect to be liable for damages to the other party.
How can I create a Separation Agreement?
If you’ve considered your options and agree that separation is the best step forward for you and your family, we can help you draught an agreement that takes into consideration your family's needs. We will let you know all of the considerations and can help you negotiate the terms of the agreement, while trying to minimise stress and complication. Where required we can assist you and your partner with mediation and also ensure that the agreement is correctly drafted and signed by both parties.
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