Separation Agreements


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 Court’s 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 Court’s 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:

  • each party has made full and frank disclosure of their financial circumstances to the other;
  • each has had independent legal advice on the terms of the agreement (or has had an opportunity to take such advice, even if they ultimately choose not to);
  • there has been no undue pressure brought to bear by one party on the other to sign the agreement, and
  • there has been no significant, unforeseen change in circumstances since the agreement was signed (for example, one party suffering an illness or accident that affects earning capacity).

Advantages

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.

Disadvantages

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.

How can we help?

  • Advise as to the advantages or disadvantages of having a Separation Agreement
  • Draft the Agreement
  • Consider terms proposed by the other partner and negotiating agreed terms
  • Identify and refer you to a mediator to resolve any disagreements that arise about the terms of a Separation Agreement
  • Represent you in proceedings about upholding or enforcing a Separation Agreement

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