Everything You Need To Know About Separation Agreements

28 Jun 2021

What is a separation agreement?

A separation agreement is a contract that can be mutually agreed between spouses, civil partners, cohabiting and non-cohabiting partners that have joint finances, assets and/or children together, at the time of separation.

As you may know, married couples are protected by laws when they are considering a separation and are given a range of entitlements. However, separation agreements for unmarried couples don’t include the same benefits.

Accordingly, a separation agreement is extremely advantageous to those that are looking to split and divide their assets and finances but aren’t married – but that’s not to say married couples can’t opt for this option. Married couples can consider entering a separation agreement if they’re not ready to divorce, or can’t do so due to varying reasons, to name a few:

  • They are trailing a separation before embarking on a full-fledged divorce
  • They are barred from commencing divorce proceedings because they haven’t been married for a minimum of one year.

In regards to what should be included in a separation agreement, the document can cover a wide range of areas including but not limited to:

  • Ownership, transfer and/or disposal of properties;
  • Joint finances;
  • Child arrangements;
  • Maintenance for the low-earning partner;
  • Maintenance for the children.

Person signing a separation agreement contract

What are the consequences of breaching a separation agreement?

 A separation agreement is not legally binding in its own right. However, it can be considered a contract and the usual laws surrounding contracts can apply.

As a result, breaching a term in the separation can be considered akin to breaching a clause in a contract and the person breaching the term may be ordered to pay damages to the other party.

In addition, if parties are married and decide to obtain a divorce at a later date, they can rely on this agreement to form the basis of their consent order in respect to their matrimonial finances.

Do the Courts place any significance on a separation agreement?

 If the Court is to convert a separation agreement into a Court Order, it will look at the following in a divorce matter:

  • Is it fair and reasonable;
  • Did parties enter it without any pressure and at their own free will;
  • Did parties engage in full disclosure;
  • Did both parties obtain legal advice;
  • Did both parties have sufficient knowledge of the circumstances;
  • There have been no material changes in the parties’ circumstances since the signing of the agreement?

If the answer is yes to all of the above, the Judge is likely to approve the agreement and grant an Order. Therefore, it’s imperative for parties to seek legal advice and ensure the agreement is drafted by a legal expert.

However, a Judge may choose not to uphold a separation agreement if:

  • The agreement is not fair and reasonable;
  • Either party entered into it without seeking independent legal advice;
  • There has been a material change in either party’s circumstances which renders the agreement unfair or unreasonable; and
  • Either party has not engaged in disclosure fully with honesty and integrity.

Image of a certificate of divorce

How to obtain a separation agreement?

 If any of the above sounds applicable to you and you wish to obtain a separation agreement, we can draft an agreement for you. We highly recommend booking yourself in for an initial consultation so that one of our Family specialists can take your instructions and advise you further.

In the meeting, we will ascertain whether you wish to engage in voluntary disclosure with your partner. If you opt to exchange disclosure, we’ll be able to advise you on the reasonableness of your proposed agreement.

You may have already agreed on the terms of your agreement and just require us to draft it into an agreement. Alternatively, you may require assistance with negotiating the terms of the agreement with your partner which we can assist you with.

Once the separation agreement has been finalised, both parties will need to sign it. As a separation agreement is considered a contract, the usual laws on contracts are applicable. Accordingly, it’s recommended that both parties obtain separate, independent legal advice before signing the document.

Find out more

If you’re unsure about needing to use a solicitor for your divorce or separation, do not hesitate to get in touch with us and we can put you in contact with one of our lawyers for separation to discuss your next steps.