The purpose of a separation agreement

The purpose of a separation agreement is to make absolutely clear what was agreed by spouses when they decided to live apart. This prevents future disputes and arguments. The terms agreed in a separation agreement will always be taken into consideration by a court and usually incorporated into a final order in divorce proceedings provided:

• They are fair to both parties and provide for their needs after the marriage and the needs of any children.
• Each party fully and truthfully disclosed their income, assets and financial position to the other,
• The parties had the opportunity to take legal advice.
• Neither party was subjected to duress and freely agreed the terms.

Like any agreement, a separation agreement can be changed at any time if both parties agree. However, it is not easy to enforce what was agreed between a married couple in a separation agreement outside of divorce proceedings. When an agreement breaks down determination of the financial issues in dispute will have to be decided by the family court in divorce proceedings. A judge must always apply the criteria set out in the Matrimonial Causes Act and only if the terms of the separation agreement comply will these be turned into a legally binding order.

Being separated does not necessarily mean living in different homes. You can be separated whilst still living in the same house if you live apart and both consider your relationship has ended.

If your relationship has ended but you are both still living in the same home for one reason or another (usually financial but also to jointly care for children), then it may still be possible that you are considered to be living ‘separate and apart’ provided you are no longer behaving as though you were married.

Any agreement not to apply for or follow a court order for spousal support will not be valid. An agreement not to apply for or follow an assessment of the Child Support Agency will also not be valid.

It is not difficult to prepare your own separation agreement using the example clauses below. 

The Parties

Fill in the full names and address of yourself and your partner. These should be the names under which you are each commonly known and will be used throughout the agreement to identify each of you.

Introduction.

1. Fill in the date when you married for reference purposes. Remember that although you may separate at any time after your marriage it is not possible to petition for divorce until you have been married for one year.
2. Date of separation. The separation date can be particularly important if it is intended to divorce on the ground of 2 years’ separation. It will be 2 years after this date when a divorce petition can be filed.
3. If you are intending to divorce-who will issue the petition? What will be the grounds relied upon?
4. Who issues the petition and who is the petitioner and who the respondent makes no difference to the financial settlement ordered by the court? The party who issues the petition must however pay the court fee and take most of the procedural steps to obtain the divorce. It can be agreed that the court fee is shared.
5. Confirm that you have each either taken independent legal advice or having considered the need decided not to do so.
6. Confirm that you have each disclosed your income, assets and financial means to the other.
7. Say whether the agreement reached is intended to be the final settlement on divorce.

The matrimonial home.

Fill in the address of the home where you have lived as a married couple. 

If the home is rented and one of you will be moving out permanently you should tell your landlord and will need to consider making a new tenancy agreement. Also inform the local authority of the change in occupancy. There could be a reduction in council tax.

Who will live in the home following the separation?

Usually, the party who remains in the house will pay the mortgage and all outgoings.

The party giving up occupation however will remain jointly liable for the rent or mortgage. Consider whether an ‘occupation rent’ should be charged or taken into consideration when agreeing financial matters. If the separation is likely to be long term before the house is sold or transferred the landlord or mortgage lender should be notified.

The person remaining in the house will unless specified otherwise be responsible for all outgoings including mortgage payments, council tax and services until the property is sold.

Is the matrimonial home to be sold and if so when?

If the home is to be sold.

If you have agreed that the home is to be sold you will need to agree the division of the sale proceeds. These (or the equity in the house as it is sometimes called) will be the monies left over after the mortgage has been repaid and the selling agents/legal fees of the sale are paid.

An equal division of the sale proceeds will be the starting point and usually the case with a short marriage without children where the parties have contributed equally to the purchase. Where this is not the case and if one party will receive significantly more than the other from the sale you should take legal advice.

If the home will not be sold but one party will transfer their share to the other. 

When one party transfers their share in a house to the other they will expect to be released from their obligations under the mortgage so as to be able to obtain another mortgage to buy a home for themselves. It will therefore be necessary to obtain the mortgage lenders agreement to release the outgoing owner. 

Alternatively, the party to whom the property is being transferred may choose to obtain a new mortgage to pay off the old joint mortgage. This will often be the case when money has to be raised to purchase an outgoing spouses share.

In certain cases, the sale of a property or payment by one owner for the share of the other can be deferred. Thus where there are children it can be agreed that the home is not sold until the children are self-sufficient, leave home or finish their education. 

A spouse purchasing the share of the other can also be given time to raise the money or allowed to pay in instalments. In all these circumstances legal advice should be obtained.

Payment of a lump sum.

If lump sum is to be paid this will be separate and in addition to anything paid for a share of property. 

A clause to deal with the payment of debts can be included where necessary. Such as

• The Parties agree that any debts secured against any property that either Party is receiving under this agreement will be the sole responsibility of the Party receiving that property.
• Neither party will incur any further debt on the other Party’s credit and any debt accumulated after the date if this agreement is the debt of the Party incurring the debt.
• The joint bank account with (  ) will be closed and the balance divided equally.
• Maintenance.
• Children.

The legal obligation of a parent with parental responsibility to maintain a child is not affected by the separation of parents who must both provide financial support for a child:

• Under the age of 18, unmarried and financially dependent on the parents;
• Over the age of 18 and under the age of 20, unmarried and attending full time education 
• Under special circumstances, such as disability, ongoing child maintenance for a child over the age of 18.

After the separation, both parents will retain parental rights and responsibilities (i.e. decision-making authority), but the children of the marriage will primarily reside with one parent and the children will have ‘contact’ with other (non-resident) parent.

Complete the names and ages of the child(ren).

Who will the child(ren) live with for most of the time?  Quite [possible to have shared residence.

What will be the contact arrangements for the parent the child is not living with?

• H/W will have unrestricted contact with (the child)
• H/W will agree the care arrangements for the child and incorporate these into a child care plan which will be annexed to this agreement
• The party with whom the child is not living will have contact (details)

The parties have agreed that the child(ren) will live with H/W and that (contact arrangements)

Additional clauses in agreement.

On payment of the agreed sum of [amount] [H/W] shall transfer to [H/W] absolutely all their legal estate and beneficial interest in the freehold property known as [the house] subject to the mortgage or legal charge.

[H/W] shall use their best endeavours to obtain the release of [H/W] from their covenants and obligations under the Mortgage and failing such release agrees to indemnify them in respect of such covenants and obligations.

Download and print out 2 copies of your completed separation agreement. Read it carefully and give a copy to your spouse to read. Does it accurately record what has been agreed? Is there anything else which should be included? Consider whether you should take legal advice before signing the agreement. Does your spouse wish to take legal advice.

If you are content to sign the agreement your signatures must be witnessed by 2 independent witnesses. One witness should witness the signature of you and your spouse. They should not be family members and must be aged over 18 with full mental capacity. Date the agreement and each party should then have a copy to keep in a safe place.

Remember always. If you have any questions-take legal advice. We are here to help and always available.

Example Separation Agreement

This Agreement is made on the [day] of [month] [year] between:

[Name of husband] of [address of husband] (hereinafter H)

and

[Name of wife] of [address of wife] (hereinafter W) 

 

WHEREAS:

(1) [H] and [W] were married on [date] and have lived separately and apart since [date of separation 

(3) [H] and [W] have taken or have had the opportunity to take independent legal advice before signing this agreement.

(4) [H] and [W] acknowledge that this agreement is entered into freely and voluntarily and both parties fully understand the terms herein.

(5) [H] and [W] have afforded to each other full disclosure of their income, property and other financial resources as well as their financial needs and obligations which each has now and is likely to have in the foreseeable future in accordance with Schedule 1 to this agreement.

(6) The parties intend this agreement to be in full settlement of all rights and claims and duties they have to each other in law, subject to any order the court may make on dissolution of the marriage between the parties.

Now is agreed as follows:

1. [H] and [W] have agreed to live separately.
2. [H] and [W] have agreed to commence divorce proceedings and that [H] or [W] will issue a petition based upon the others [unreasonable behaviour] [adultery] and [H] or [W] agrees to do all necessary acts to prove consent for the purposes of the obtaining of a decree of divorce. (OR). [H] and [W] do not intend to commence divorce proceedings in the foreseeable future.
3. The parties have agreed that [ H or W] will live in the matrimonial home at [address] to the exclusion of [H or W] until sale and will pay the mortgage and indemnify [H or W] in respect of all costs relating to the Home.
4. The parties have further agreed that the said matrimonial home shall be sold forthwith and that the net sale proceeds shall be divided as to [%H]and [%W]
5. [H or W] agrees to pay the [H or W] a lump sum of [amount] within [ days] of the date of this agreement. 
6. From the date of this agreement the [H or W] agrees to pay [H or W] Spousal Maintenance of [amount] each month.
7. From the date of this agreement the [H or W] agrees to pay [H or W] Child Maintenance of [amount] each month.
8. [H and W] both agree that any indebtedness incurred by them after the signing of this agreement will be the responsibility solely of that party and that neither will incur any debt or liability on the other party.
9. In the event that a dispute arises relating to matters agreed H and W will attempt to resolve the issue by discussion and mediation before resorting to litigation.
10. This agreement shall be governed by and construed in accordance with the law of England and Wales in witness whereof the parties have signed this agreement on the day and year first above written.
    
    Signed by [H]…………………………………… in the presence of:
    
    Signature of witness: …………………………………………………………………
    
    Name of witness: ……………………………………………………………………..
    
    Address of witness:……………………………………………………………………
    
    SIGNED by [W]………………………………… in the presence of:
    
    Signature of witness:………………………………………………………………….
    
    Name of witness: ……………………………………………………………………..
    
    Address of witness:……………………………………………………………………
    

Schedule 1. 

Financial needs and obligations of H.

Financial needs and obligations of W.