Separation Agreement

If your marriage is in trouble, it can make good sense to live apart for a while before rushing off to the divorce court. This will give you both time to think about living alone, have ‘me’ time and see whether absence might indeed make the heart grow fonder. Life outside your marriage may not be as sweet as you imagine. There can also be financial advantages to remaining legally married but living separately such as maintaining pension entitlements.

A separation can give you time to cool off, reflect and collectively sort out all the implications of the family breaking up and avoid the possibility of an expensive court battle. There will be time to test the arrangements, assess your situation get advice and mediate any disputed issues. These all take time.

Although there are no formal procedures to follow if you decide to separate, if it is likely to be for anything other than a short period, you should record the arrangements in a separation agreement. This will help you think through what has to be decided and by writing it down will avoid any future dispute. The separation agreement can also form the basis of the settlement if later you decide to divorce.

What has been agreed at the time of separation and recorded in a separation agreement will be highly persuasive but not binding on a court in divorce proceedings. A separation agreement entered into by a cohabiting couple who are not married will however form the basis for a legally binding agreement which a court would be expected to enforce if freely entered into.

This separation agreement makes provision for the wide variation in arrangements which need to be agreed when a couple decide to live separately. Its key provisions include the agreement to live apart, maintenance and support during the separation and responsibility for payment of debts and liabilities. The agreement contains clauses dealing with who will live in the family home, whether it will be sold and the division of all the family assets. Where children are involved it can include the arrangement for where they will live and contact with the non-resident parent.