A Separation Agreement can be used to set out the arrangements agreed on a relationship breakdown following actual or imminent separation. This applies whether a couple is married or not. If you are married, there may be reasons why you wish to delay starting the divorce procedure. The most common reason for this is when the intention is to base the divorce on the parties having been separated for at least two years with the written consent of the other party. This avoids having to blame the other party for the breakdown in the marriage. Whilst waiting for two years’ separation to pass the parties set out in a separation agreement all the issues that they have been able to agree such as:
- the sale of the family home and a division of the proceeds;
- how the outgoings are paid until sale;
- maintenance payments for children and / or one of the parties;
- when any children will spend time with each of the parents;
- a division of the other assets including the furnishings or other possessions;
- possible pension division;
- how any debts are to be repaid.
Provided certain steps have been followed, the agreed arrangements set out in the formal Agreement can later be referred to in an Order approved by the Court within the divorce. Once approved, the arrangements are binding for the future. The most important steps to follow are that each party sets out in the Agreement his or her full financial details so that the other party agrees terms knowing what income and assets each of them have. There must be no pressure put on either to agree the terms and, ideally, they should each have received independent legal advice. Not following these steps can jeopardise the future effectiveness and enforceability of the Agreement. For those who are not married, a Separation Agreement entered into with the same formalities as for a married couple can still set out agreed terms on the breakdown of a relationship. This should limit the chance of one making claims against the other’s assets at a later date and can therefore produce certainty for the future. A formal Separation Agreement is effectively a contract and, if the terms are fair, it may be possible to enforce it and in certain situations even claim compensation for the other’s breach. Such an Agreement is best written in technical language and so it is wise to seek legal advice over its preparation. We have experienced family lawyers who can assist you in negotiating and drafting the appropriate written agreement. Sarah Jones and Jonathan Harvey can be contacted at our Gillingham office on 01747 825432 and Jo Pridmore can be contacted at our Warminster office on 01985 947101.