Separation agreements – why enter into one?

Sometimes when spouses separate they do not wish to obtain a divorce immediately or they never want to divorce (perhaps for religious reasons) but they do want to formalise and protect themselves during the period of separation.

A way of doing this is by entering into a separation agreement which can provide for the following:

• Agreement to separate
• Agreement to divorce in the future
• Maintenance
• Care of the children
• Lump sum payments by way of settlement
• Transfer of property
• Occupation of the matrimonial home
• Assignment of life policies
• Closure or transfer of joint bank accounts
• Payment of liabilities

A separation agreement, like any other agreement or contract must be formed in accordance with general contract principles. The most important element is a mutual intention to create legal relations. It is important for both parties to take independent legal advice, this will seek to uphold any argument in the future that they both fully understood what they were entering into and did so without coercion or under duress. Such agreements can also be challenged by a party of the grounds of fraud or mistake. Again certifying that advice has been sought will help to do away with such challenges.

The agreement to separate in the document will state that the parties intend to live apart. This releases them from the duty of a married couple to co-habit and does not allow for either party to claim they were deserted! This also shows that the parties are treating their marriage as over, a separation period can from that moment begin.

Often a married couple who wish to divorce do not feel that either has behaved so unreasonably that this should be their ground for divorce. In such cases therefore they have the option of entering into a separation agreement for 2 years. The agreement will therefore set out their intention to divorce on the expiry of the 2 years and either party can petition for a divorce on the basis of 2 years separation, without the need for blame to be placed.

Maintenance payments can be agreed and set out in respect of a spouse and the children. Although such an agreement will not oust the jurisdiction of the Child Support Agency.

Often it is too soon to decide whether or not the matrimonial home should be sold so the occupation of the home can be agreed and detailed. Covering matters such as the payment of the mortgage, outgoings and repair in that period.

Whilst matters might be amicable in respect of the children at the point of separation, it is often beneficial to set out child contact arrangements which have been agreed, in writing. This will avoid any uncertainty and hopefully potential contention. Both parents will however maintain their parental responsibility and will have to make the most important decision regarding the children together. An agreement will also not prevent either party from making an application under the Children Act if they deem it to be appropriate.

Advantages to entering into a separation agreement

• Entering into separation agreement can often be a speedy process and accordingly will keep costs down.
• Anything can be agreed or added so it keeps the relationship flexible.
• The main advantage is that if the parties are entering into a separation agreement with a view to petitioning for a divorce in 2 years time, so long as the agreement has been working and is detailed enough, it can be converted into a consent order as part of the divorce process, cutting down on huge amounts of time and costs.

Disadvantages to entering into a separation agreement

• A separation agreement is the same as any contract. Its enforceability is limited and the usual remedies for breach of contract are still available, such as damages or specific performance. A Court order is much easier to enforce.

• A separation agreement is not final. A Court order dismissing all future claims drawn up as part of a divorce does not allow for either party to return claiming again after a clean break whereas they can after having entered into a separation agreement.

• The Court will have the power to vary a separation agreement but if it is not in writing it can be varied by either party.

Written by Alicia Cenizo

The writer is a Solicitor, Partner and head of Private Client, including family law at Darlingtons Solicitors, and a member of Resolution.