Separation agreements are equally applicable to heterosexual and same-sex relationships.
The only way to achieve a truly binding financial agreement with your former partner is through a final financial order made by a Judge. However, some people choose not to take that step when a relationship breaks downn, but still want to formalise and record what they have agreed. One way to do this is by entering into a Deed of Separation or Separation Agreement.
A Separation Agreement may contain provisions or deal with issues which would be beyond the Courts jurisdiction. They are therefore an extremely flexible vehicle. It is generally up to the couple to decide (within reason) what arrangements they want to record.
Most frequently, people want to record what has been agreed in relation to their children and their assets. Separation Agreements will therefore often include provisions about where children will live, how much contact they will have with the other parent (and extended family members) and the level of child maintenance payable. The same legal principles apply to Separation Agreements dealing with such matters as apply to parental agreements.
In relation to assets, a Separation Agreement will often record whether, when and how those are going to be divided between the partners. The agreement may also deal with whether and when a divorce / dissolution will take place, who will make the application and how the costs of that will be met.
A Separation Agreement cannot, however, exclude the Courts jurisdiction. Either party to the agreement can, therefore, issue an application for financial provision in the event that a divorce / dissolution Petition is issued. While not bound to apply the Separation Agreement, the Court will treat it as persuasive evidence of what the parties agreed and intended when they separated.
To maximise the likelihood of the Court holding parties to the terms of a Separation Agreement, it is essential that:
The key advantage is flexibility. A Separation Agreement can include (broadly) any term you wish to incorporate. It provides a means of recording the resolution of financial and other issues formally but without Court intervention. This can save both expense and bad feeling.
They may be difficult to enforce in the event of a party changing his or her mind. They are less certain and final than a Court Order.
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