Upon the separation from your spouse, as an alternative to divorce and financial remedy proceedings, you can enter into an agreement which provides for maintenance, care of the children and division of any property. These arrangements are known as Separation Agreements.
It is important to bear in mind that agreements can be challenged on grounds of fraud, mistake, duress and undue influence; both parties should therefore get independent legal advice before entering into this type of agreement.
The topics that are typically covered by a Separation Agreement are as follows:
- Agreement to separate (date can be used to fulfil separation requirements for divorce);
- Periodical payments. Any agreement to pay maintenance to a spouse cannot prevent either party from applying to the court for financial remedy as part of the divorce. However, the agreement will be taken into consideration as a factor;
- Property (mortgage repayments, outgoings & repairs);
- Children (not necessary but can include details regarding the residence and contact.
The advantages of drafting a Separation Agreement are as follows:
- They can be entered into quickly;
- They are cheaper to finalise;
- You avoid litigation;
- You avoid bitterness and confrontation;
- They are very flexible, as the agreement can include anything.
It is very important you obtain legal advice prior to entering into a separation agreement, as agreements that are properly and fairly arrived at with competent advice will be difficult to ignore should proceedings be instigated in the future, unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement. Therefore it is important to bear in mind that the agreement may not be a guaranteed final solution if financial remedy proceedings follow, as the agreement can be varied by the court.