Is a separation agreement right for you?
If you have separated from your spouse but do not wish to immediately consider divorce proceedings, you may wish to consider entering into a Separation Agreement. Tilly Bailey & Irvine’s family law experts explain.
Separation can be a difficult time for families, particularly where there are children involved, and you may, therefore, wish to temporarily postpone the legal formalities of divorce proceedings.
A Separation Agreement is an agreement between you and your spouse which can be used to determine how matrimonial assets are distributed and how any ongoing financial arrangements shall continue. Separation Agreements can cover a wide range of areas including, but not limited to:
- who will pay the mortgage of the family home;
- who will ultimately remain in the family home/arrangements if the home is to be sold;
- what happens to any joint bank accounts, savings accounts, other capital you may have;
- how liabilities to are to be distributed and discharged;
- where applicable, how much child maintenance shall be paid from one party to another and the arrangements for any children of the family etc.
The above list is non-exhaustive and will be tailored to the facts of each respective marriage.
If you are considering a Separation Agreement, parties must be aware that this does not alter your marital status as you will remain legally married to your spouse and, also, that a Separation Agreement is not a legally binding court document.
A Separation Agreement is often entered into on the understanding that one of the parties to the marriage will lodge an application for divorce on the fact of 2 years’ separation and consent once they are able to do so (once a period of 2 years has elapsed since the date of separation).
If there have been significant changes in yours or your spouse’s financial circumstances since the preparation of the Separation Agreement, the court may be of the view that the Agreement is no longer appropriate and, therefore, depart from the terms of the initial Separation Agreement upon making a financial order within divorce proceedings. However, if the court are satisfied that both parties had entered into the Agreement each with the benefit of independent legal advice and fully aware of one another’s financial circumstances, the court can be persuaded to adopt the terms of the Separation Agreement.
A Separation Agreement can also be prepared for unmarried couples wanting to formalise their financial arrangements upon separation.