These are agreements reached and put in place by couples who wish to end their relationship and go their separate ways, or who simply no longer wish to live together. They are not limited to married couples, they can also be entered into by cohabiting parties or those in a civil partnership.
Married couples often enter into separation agreements if they do not want to divorce at all or do not want to straight away. Married parties who do not feel there is blameworthy behaviour or adultery to use as the basis for their divorce often opt for 2 years separation but wish to set out the terms in the interim.
Separation agreements contain terms such as:
- Ownership of the property or its sale or transfer;
- Any maintenance to be paid by one party to the other;
- Who is to pay any liabilities;
- The split of any joint assets and personal possessions;
- Who the children should live with and arrangements for contact;
- Where each party intends to live.
Separation agreements, when entered into properly, are governed by the principles of contract law. If one party breaches the agreement they can seek relief in Court for breach of contract. To make the agreement binding in this way both parties must give full disclosure of assets and financial circumstances, they must both have had the benefit of independent legal advice and they must not be pressured or coerced into signing it.
Separation agreements can be greatly beneficial. Not only do they establish a degree of certainty as to how matters are to be dealt with during the separation but they can also save the cost of contentious proceedings should there be a divorce in the future, not to mention saving the stress and harmful impact on all involved.
Ultimately, if the case proceeds to divorce the separation agreement can be converted or at least used as a guide for the drafting of a consent order. A consent order in divorce sets out the terms of settlement, it is then sealed by the Court and therefore legally binding.
The key element in respect of separation agreements is choice. Parties have the option of separating, knowing to a degree they will be protected, they do not immediately have to divorce but if they do the agreement will go one step further in simplifying what is already a stressful complicated process.