What Can and Should I Include in a Separation Agreement?

Sometimes married couples decide to separate without getting divorced, or at least spend some time alone before going through formal divorce proceedings.

Unfortunately disputes can arise during a period of separation if the two parties fail to set out their expectations in advance.

A separation agreement can ensure that both people are on the same page and helps to avoid disagreements further down the line, but what can and should be included in the agreement?

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    What is the main purpose of a separation agreement?

    A separation agreement is used by married couples to set out arrangements regarding a range of matters – including finances, property and children – during a period of separation.

    It often serves as a form of interim agreement before they reach a permanent agreement in the guise of a settlement agreement upon divorce.

    Some married couples who wish to separate without getting divorced will draw up a separation agreement.

    Alternatively, they might be going through a trial separation or waiting for a minimum period of separation before getting divorced for certain reasons.

    Separation agreements can also be used by cohabitees or unmarried couples, who are unable to form a settlement agreement.

    Although a separation agreement is not a court-approved document in the same way as a settlement agreement, if it is entered into correctly it will carry weight as evidence of the intentions of both parties.

    What can and should you include in a separation agreement?

    What to include in a separation agreement will very much depend on the individual circumstances of the couple. But these are some of the most common provisions:

    • Property – if the couple live together, they will need to decide on their living arrangements during the period of separation, eg whether they will both continue to reside in the same home or if one party should move out. If they jointly own a property, they might decide to sell up and divide the assets, so that they both have sufficient assets to buy or rent their own homes.
    • Joint savings – many couples have joint bank accounts, particularly a joint savings account. A separation agreement can specify an agreed division of these assets.
    • Joint debts – as well as shared assets, many couples also have joint debts. Quite often the debts will be in the name of an individual, but the intention was to share repayments, eg furniture purchased for their home or a kitchen refurb which was paid for by credit card. Any such debts should be specified in the separation agreement, along with instructions regarding ongoing repayment.
    • Maintenance payments – whenever there is a significant imbalance in terms of earnings or assets between husband and wife, especially where this would reduce the living standard of one party upon divorce, this will often be addressed as part of a settlement agreement. Oftentimes this will involve ongoing spousal maintenance payments. It is a good idea to include these types of maintenance payments in a separation agreement, as a precursor to a more permanent divorce settlement. It can also enable unmarried cohabiting couples to make a similar arrangement.
    • Lump sum payments – as an alternative to maintenance payments, some separation agreements might contain lump sum orders, whereby a specific sum of money is paid to either party.
    • Childcare arrangements – whether or not they are married, parents who separate will need to agree to a range of matters regarding their children, eg who they live with, how often the other parents gets to visit, the amount of child maintenance payments etc. It can be helpful to set out these childcare arrangements in a separation agreement. An alternative is to form a shared parenting agreement.
    • Provision for divorce – one of the clauses in a separation agreement can specify that divorce takes place by a certain date, failing which the separation agreement will cease to apply. This can be useful to avoid the situation where a married couple provisionally agree to get divorced but then one party keeps delaying matters.
    • Pensions – the value of any private and occupational pensions should normally be added to the overall matrimonial pot of a married couple who decide to get divorced. There are then various ways of distributing this value, including pension sharing, pension offsetting or pension attachment. A separation agreement allows unmarried couples to take advantage of these methods of sharing a pension, to which they would otherwise not be entitled.
    • Business assets – the value of both shared and individual businesses is normally added to the matrimonial pot. Including business assets in a separation agreement allows both married and unmarried couples to benefit from the business interests of their former partner.
    • Personal belongings – disputes over personal property such as furniture, high value personal items such as cars and jewelry, or even pets, can result in protracted legal wranglings if these are not nipped in the bud. Specifying who is entitled to what in a separation agreement – as well as any timeframes for collecting items and who cares for them in the meantime – can help ensure a smoother separation process.

    What are the most common clauses in a separation agreement?

    Circumstances can change after a separation agreement has been drawn up. This can often result in the original provisions quickly becoming out of date, impractical or difficult to enforce.

    It can be helpful to include certain clauses which take into account potential future developments, such as:

    • Death – it is useful to include a clause which specifies what happens to the separation agreement in the case either party dies.
    • Change in income – if either party suffers a drop in income or loses their job, this will affect their ability to continue with maintenance payments, so it’s useful to include a relevant clause to deal with this potential eventuality.
    • Marriage or cohabitation – if the separation agreement relates to an unmarried couple, they might want to include a clause which voids the agreement in case either party decides to get married. In the case of married parties, a similar clause could address the situation where either party starts cohabiting with a new partner.
    • Breach of agreement – one key clause should specify what happens if either party breaches the separation agreement. This may allow for a period of negotiation, following which the agreement becomes void.

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    This post was written by Mark Keenan. Editor of Divorce-Online and Managing Director of Online Legal Services Ltd. Mark has been writing about divorce and related subjects for over 20+ years and is an expert in legal marketing.

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