Is a separation agreement necessary?
There are many situations where a marriage comes to an end and for whatever reason the couple do not wish to start divorce proceedings straight away. They may, however, want to divide their marital assets and have some kind of protection/recognition of the settlement terms which have been mutually agreed. In this situation a separation agreement would be the way to go as this document is a written contract setting out how the parties plan to divide their joint assets and responsibilities. Whilst not legally binding, as long as it is drawn up properly it is a formal contract that can be very difficult to challenge in court.
The agreement can include any information relevant to both parties at the end of the relationship. Usually the document will deal with what is to happen to the family home in terms of who will live there, how the mortgage/bills will be paid and how the net equity will be divided between the parties. The document can also record:
- What will happen to any savings and inheritance;
- How the parties will deal with any debts they may have;
- If one party is going to pay the other any maintenance the document can record how much and for how long; and
- The arrangements for the children, including where they will live, how they will spend their time with both parents, and how will their financial needs be met.
There are three main advantages of getting a separation agreement. First, it gives the parties time for consideration and the financial stability to think before taking the important decision to divorce. Second, the document can provide the legal certainty needed to protect both parties financially as it can be challenging to prove the terms of any verbal agreement. Thirdly, having a signed agreement in place can help reduce tension, avoid expensive court costs and help resolve issues more efficiently.
A separation agreement is a formal legal document, but it is not a court order. It is a contract that can be challenged in a court provided it has been written correctly by a family lawyer and under certain conditions including,
- Entered into voluntarily by both parties, with the benefit of legal advice
- Full financial disclosure of both parties
- The terms in the agreement are fair and reasonable.
It is therefore important that the parties receive separate and independent legal advice before signing the agreement as it may be needed in evidence should the matter go to court.
Amanda Erskine is a solicitor in the Family department at Barker Gotelee Solicitors in Ipswich.