A separation agreement, or a deed of separation as it is also known, is a written agreement made between parties when their relationship or marriage breaks down. It can be used to record how their joint assets and responsibilities will be divided between them and set out the arrangements for any children of the family to spend time with them, once they are living separately and apart from each other.
A separation agreement is usually made in the following circumstances:
In these circumstances, having a separation agreement in place can provide parties with a sense of security in knowing that their agreements in relation to finances and arrangements for children have been formalised legally. This provides greater legal protection as opposed to a verbal agreement.
What can be recorded in a separation agreement?
The parties decide on what they want to include in the separation agreement, but common provisions include the following:
Is a separation agreement legally binding on the parties?
Although a separation agreement is not legally binding in the same way as a financial court order made in divorce proceedings, provided the parties comply with certain requirements, it would be considered as a legally persuasive document.
Consequently, if the following requirements were met when making the separation agreement, it would prove difficult for a court to set it aside if one party tried to resile from the agreement:
What happens if the parties to a separation agreement decide to divorce each other?
Parties who previously entered into a separation agreement, who are happy to keep the same terms in relation to their financial settlement, can instruct solicitors to convert their separation agreement into a financial court order, known as a financial consent order. Subject to the court’s approval, the financial consent order becomes legally binding upon the parties. The court is likely to approve of the financial consent order if the requirements set out above were met when the separation agreement was made and provided that the parties’ circumstances have not significantly changed since then.
A financial consent order is an important part of divorce proceedings, as without this, any financial claims arising from the marriage will stay open, leaving both parties financially vulnerable, even once a divorce has been granted. By contrast a simple consent order will protect you both from any financial claims in the future.
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