Separation Agreements – When to use one and why?
Because life is never always black and white, you may find yourself at a low point in your relationship where things are going badly, but you don’t yet want the finality of divorce.
In such situations, you may find that a deed of separation will provide the legal certainty you need to protect yourself financially, without having to go through the painful and finality of divorce proceedings.
What is a deed of separation?
A deed of separation, which is also known as a separation agreement is a type of order made when you wish to separate, but aren’t ready for a divorce.
Sometimes, a separation agreement is only intended to regulate the terms of a temporary separation, for example, who is to pay the mortgage and other outgoings.
Entering into an agreement of this nature makes the process of divorce much easier if it comes to that.
There will be agreement to the divorce and your financial agreement involving your marital assets, such as pensions and matrimonial home will already be agreed, removing costs and pain at the time.
What are the benefits of getting a deed of separation draw up?
A deed of this sort can include a wide variety of provisions, for example, maintenance, financial matters and arrangements for any children after separation.
The main benefit to obtaining this order is that it gives you legal protection if divorce proceedings were brought upon you.
It makes the transition of settling your matrimonial finances easier as there is already an agreement in place to deal with the split of pensions, property and other assets.
It would also make it more difficult for one spouse to claim for a significant amount more than was already agreed previously in the separation agreement.
Separation agreements are flexible and save for a handful of limitations. You can also agree to make changes to the agreement.
In what kind of situations are these orders used in?
Financial matters often cause some of the biggest problems between couples and are a prime cause of marriage breakdown.
A separation deed may reduce the tension primarily by providing financial certainty without having to involve the court.
These types of orders are primarily used when parties have agreed to separate but don’t want the finality of divorce.
Both parties agree that they want to put things in place as a precaution of divorce, so that if proceedings are brought upon either party, the acrimony is reduced and finances aren’t squabbled over.
Separation agreements can be tailored to the needs of each couple and can for example, deal with the following:-
1.Living apart: the agreement to live apart, free from interference from the other spouse, is a key feature of a Separation Agreement.
2.Maintenance: one party can agree to pay maintenance to the other and/or for any children.
However, such an agreement may not prevent the Child Support Agency becoming involved.
3.Property/Finances: arrangements for the division of assets or the discharge of debts are a common feature of Separation Agreement.
4.Arrangements for your children
How do Separation Agreements work from a practical perspective?
A separation agreement is a type of contract and, therefore, a legally binding document.
If either of you then fails to respect the provisions of the agreement, the other party may take legal action for breach of contract if the terms of the agreement have not been carried out.
However, if the deed is not prepared properly then it may not prove to be legally binding.
It is, therefore, important that both of you receive separate and independent legal advice before signing the agreement, as this may be needed as evidence in any court proceedings to enforce the terms of the agreement.
Like any contract, the only way to enforce it, is to take the matter to court.
This does not mean that you will be required to attend a court hearing, the agreements simply needs to pass through court via a judge.
What happens if we’ve got a separation agreement and then get divorced?
Should you and your spouse subsequently divorce, provided your separation agreement is drawn up properly and is reasonable, then a court is unlikely to interfere with it and will usually seek to uphold the provisions contained in it.
Also the terms of your deed can then be transferred, very quickly and easily into what is known as a financial consent order.
Effectively, your separation agreement is appended to the order and endorsed by the court.
Can you draft your own separation agreement?
Unless you have been legally trained it would be very hard for you to have the necessary knowledge and drafting skills to draft an agreement that would be accepted by a court in the event of a dispute.
Therefore it is always advisable to have a solicitor or someone fully trained to draft your agreement to ensure it passes through court.
Seeking legal advice before entering into a separation agreement is always advised to ensure you have a fair and legally robust agreement, but it’s not required by law.
It may sound like needing a solicitor to obtain this agreement will be costly and therefore decide not to do it, but it doesn’t have to be expensive when you choose to use Divorce-Online.
Our family law solicitor can draft your agreement and advise you on how to sign it for just £299.00 fixed fee.
What can be co vered in a Separation Agreement?
Below you find typical examples of what gets covered in a separation agreement;
- How much each party is to pay in respect of the mortgage, rent or household bills until you are able to move.
- How your debts will be split between you.
- How the money from the sale of a home will be split after payment of fees.
- How to separate joint bank accounts and savings.
- Division of personal property such as cars, CD collections, and furniture.
- The payment of any ongoing maintenance for a spouse or children.
- Who the children will live with and when they will see the other spouse.
There are many more things that can be covered in a separation agreement, these are just typical examples of things that couples usually put into their agreements.
Are there any drawbacks to having a deed of separation?
There are some drawbacks to separation agreements, including the fact that they are harder to enforce than a court order.
In addition, a court can, following an application by either of you in subsequent proceedings, make orders that differ from the provisions of the agreement.
However, a court will only alter the terms of a separation agreement with good reason, for example, if the agreement is unfair or defective.
I am prepared to be reasonable, but I am curious on the legal position. is there a formula for calculating this?
I think if the children are grown up, and you both work then a 50% split would be appropriate unless she can show she has a greater need for capital than you because her mortgage raising ability is less for instance.
Will a piece of paper we signed count as a separation agreement?
The best way to make sure your agreed terms are dealt with is by way of a formally drafted separation agreement.
This document sets out how your finances will be dealt with, any children arrangements and gives a timetable for the divorce, usually after 2 years separation. You can document the separation date so you can proceed with the divorce 2 years after the date given.
If you try and rely on a self drafted agreement, it is very likely that a competent lawyer would be able to unravel it very quickly if there was a dispute. A Solicitor drafted agreement will contain the latest precedents and court approved wording.
Will a separation agreement protect me from future claims?
Yes, a deed of separation would give you some protection until you are able to file for the divorce after the 2 years is up.
The court can in some circumstances overturn parts of the agreement if they think it fit to do so, but where the parties have come to an agreement with full disclosure of assets having been given this is unlikely to happen. In reality a separation agreement is the best insurance policy you can get until you apply for the divorce and have an order made which is then binding thereafter.
Should we get a separation agreement if we may get back together?
It would be advisable to have a separation deed drawn up which will deal with the financial aspects of the matter and give you some security and also will allow you to divorce after 2 years.
If in the meantime you cohabit for more than 6 months the terms of the deed would be fairly irrelevant.
Is it worth drawing up an agreement?
It is as always very important to take independent legal advice. If you are dividing up assets and sharing out the money you absolutely should have a formal agreement. It would also mean that you can formalise and finalise the financial agreement so that it is all over once and for all. Take legal advice and make sure its done properly.
Obtain a Separation Agreement without the stress or expense
There’s no need to spend thousands hiring a solicitor to draft your separation agreement, we can deal with everything for you for just £299 fixed fee. We’ll help save you over £750.