Separation Agreement

When couples have not yet decided on whether to divorce, but wish to formalise their separation, they should consider have a separation agreement drafted. It can include anything they want to, but typically covers such areas as:

Agreement to separate, so that the agreement is evidence that the parties are treating the marriage as an end so that a period of separation can begin to run for the purposes of divorce on the grounds of 2 or 5 years’ separation (see divorce section).
Maintenance payments, whether in relation to children or to support the ex-partner
Property eg transfer of property, payment of the mortgage, utility bills and repairs
Where children will live and how and why they will see their parents.

Advantages:

flexibility: it can include matters which could not be included in any court order
speed: the agreement can be entered into quickly, whereas a contested court order may not be made for some considerable time.
clarity

Disadvantages:

Although you may agree to share pensions with your partner, the trustees of the pension cannot implement such an agreement without an actual order from the court
Enforceability: a separation agreement is much more difficult to enforce
Finality: a separation agreement can never be a guaranteed final solution, whereas a court order can order a ‘clean break’ preventing either party from applying to the court to vary their order.

Once a divorce is entered into, then generally the agreement is converted into a consent order to provide that ‘finality’, to ensure it is enforceable and to bring their respective legal claims to an end. The court still has the power to make property and financial orders affecting you and the Deed of Separation cannot prevent the Court from exercising those powers.

Difficulties could arise if for example one of you changed their mind and/or sought to exclude some parts of the agreement and attempt to renegotiate a fresh deal. The Court is only likely to interfere with the provisions of the Deed of Separation only if:

a) it was satisfied that one or both of you had not been given the opportunity of taking independent legal advice
b) there had not been full and frank financial disclosure
c) those arrangements had now become completely unfair to one party. Sometimes there can be quite a delay between the signing of the Deed of Separation and the divorce proceedings. For example where one party who was earning a good income, has since become seriously ill and will never be able to work again, it would be unfair to disallow maintenance.

To speak to a member of our team call 01252 361200