Separation agreements and what they mean in the modern world
This section of the site explains how separation agreements work and why to use a separation agreement if you decide not to get divorced straight away. A separation agreement can also be drawn for unmarried couples who have decided to separate.
A couple decide to go their separate ways but don’t necessarily feel they are ready for divorce – but they want to split their monies and, for example, sell the house – what can they do? They each think they trust the other but are not quite sure. Will their friendly separation continue when one of them starts dating someone new? It is amazing how frequently a couple who believed totally in each other’s intentions and trusted their partner implicitly turn into doubting Thomas’s. Suddenly Aunt Agnes’s pot of ashes becomes ultra important and worth arguing over!
In such circumstances a separation agreement, otherwise known as a Deed of Separation, is worth considering. Such a document allows the couple to conclude their financial situation at the time that they agree to go their separate ways. This means they promptly record who is to have what and hopefully avoid the necessity of court proceedings. It is especially suitable if the couple doesn’t want to get divorced or do not have the requisite “grounds” straight away and choose to be separated for two years before applying for their divorce.
What’s included in a separation agreement?
When preparing to draft the separation agreement each party must produce full and frank financial disclosure, showing documentary evidence of their assets and liabilities. Each party exchanges this information with the other. Then the discussion takes place – and hopefully an explicit separation agreement can be drawn.
On receipt of instructions from a client wishing for a separation agreement your lawyer will draft a legally worded agreement for presentation to the District Judge. Prior to going to court the document is generally sent to the other parties’ solicitors for their consideration.
The separation agreement includes such information as age, employment and accommodation. A draft agreement is sent to the client and is accompanied by a letter to them confirming the agreement is only persuasive and not enforceable. In other word’s it’s a gentleman’s agreement which the parties would feel morally bound to keep but unfortunately there is no legal penalty for failing to do so.
Once you are happy with the agreement the draft will be sent to the other side’s solicitors with copies of bank statements, valuations and accounts etc. The documentation includes details about you and your partner, where you intend to live, how you intend to split your monies and who will have control of sale of any property. It may also dictate who will pay for what and information relating to the arrangements for the children, if any.
The Courts are always striving to reduce costs in family proceedings and minimize the use of the ever-stretched Court time. If a couple have successfully agreed to a division of their family assets and the agreement has worked well for a period of two or so years perhaps the best way forward would be to remove the Court’s discretion when a properly prepared separation agreement is presented to it.
There is no doubt the timescale for finalising financial affairs at the end of a marriage can be significantly reduced when a separation agreement has previously been drawn.
More and more people are choosing to adopt the route of obtaining a separation agreement and, whilst a gentleman’s agreement rather than something enforceable in law, the agreement tends to make each party feel more comfortable and, for previously married couples, allows the divorce to take place when the tension has subsided a little. When a married couple do eventually divorce their separation agreement, if it has worked, can form the basis of the Consent Order application and the District Judge is notified of the parties’ long term agreement and the fact that it has worked well.
Of course, if the couple decide to divorce straight away it is not necessary to consider drawing up a separation agreement as the financial settlement on divorce achieves the same ends.