More information on Separation

We understand that applying for a divorce can be a very big step. Not everyone who separates from their spouse wants to apply for a divorce immediately. This may be because neither party wants to blame the other for the breakdown of the marriage, preferring instead to wait until they have separated for 2 years and using this as the basis for the divorce, so that proceedings are conducted as amicably as possible.

Alternatively, it may be that a divorce cannot be obtained, for instance where none of the facts upon which a divorce must be based are immediately available or because the parties have been married for less than 12 months.

In these circumstances it is still important to consider the financial implications of separation and ensure that both parties and any children are adequately provided for. This can be done by entering into a Separation Agreement (sometimes referred to as a Separation Deed).

What is a Separation Agreement?

It is a private agreement between two individuals which is legally binding on both. It is enforceable through the Courts although the Court is not involved when drawing up the agreement. In many ways it is similar to a contract.

What can a Separation Agreement Do?

It can regulate most aspects of a financial settlement between separating couples. This includes the following:

  • Maintenance provision, whether for spouses or for the benefit of children
  • Payment of a lump sum of money from one party to another, whether by a single lump sum or in instalments
  • Sale or transfer of property, whether immediately or at some point in the future, for example when the children have completed their education
  • Payment of school fees
  • Limited provision in relation to pensions

It is also possible to record the arrangements to be put in place for children, whether care of the children is to be shared equally or a child is to live mainly with one parent and have contact with the other parent. However, such a recording is not legally binding and simply reflects the intentions of the parties at the time the agreement is entered into.

Limitations on Pension Provision

Agreement in relation to pensions cannot always be dealt with effectively by way of a separation agreement. In most cases, the agreement will be limited to providing for one party to lodge a memorandum of wishes with the administrators of a pension fund but it should be noted that this is not legally binding upon them and those wishes may be ignored.

Within divorce proceedings, the Court has the power to make pension attachment or pension sharing orders. A Court order is required in order for such provisions to be made and for this reason it is not possible to include such provision in a Separation Agreement. It is possible to include provision providing for such as order to be submitted for the approval of the Court in any subsequent divorce proceedings but this could leave you vulnerable if your spouse dies prior to such an order being approved.

Essential Issues

It is vital that both parties provide full and frank disclosure of their financial circumstances before entering into a separation agreement. Only in this way can we ensure that the agreement. Only in this way we ensure that the agreement you enter into is the right one for you.

Although it is possible to enter into a separation agreement without going through the disclosure process, you will leave yourself at risk of being legally bound by an agreement which is inappropriate, or that a Court in any future divorce proceedings will be prepared to overturn the agreement and make sure order for financial provision as it thinks appropriate at the time.

It is also essential for both parties to have separate and independent legal advice before entering into a separation agreement to ensure that both parties are on a level playing field. Finally, the terms of the agreement should not be far outside the norm. If these conditions are not met, it is again more likely that a Court in any subsequent divorce proceedings will be more easily persuaded to overturn the terms of settlement.

If you would like more detailed advice in relation to separation agreements, please contact one of our family law experts.

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