A separation agreement (also known as a maintenance agreement) is a formal agreement between a married couple who decide they wish to stop living together. This agreement enables the couple to manage their finances, division of property and care of children.
The agreement is open to challenge by either party on the grounds of undue influence, duress, fraud and mistake. It is therefore essential that if you intend to enter into a formal separation agreement that legal advice is sought by each party prior to make sure that both parties set out in writing the terms to which they are agreeing to the separation.
Contents of a separation agreement
A separation agreement usually states that the parties are going to live separately and this will provide evidence of a dissolving marriage. A separation agreement can be relied on as proof of an irretrievable breakdown of a marriage which is what courts need to see before they allow divorce proceedings to commence. The agreement may contain provisions relating to:
- periodical monthly payments for maintenance
- payments relating to the property such as the payment of the mortgage, repairs and outgoings
- arrangements relating to the children such as where the children should reside and how much contact the other parent may be entitled to
- agreement not to disturb, pester or harm the other partner
A separation agreement would need to be signed and dated in order to take effect and be able to be used when petitioning for divorce. However in these financially tough times it is often the case that couples cannot actually afford to allow one of them to move out and thus live in two separate households. They are therefore forced to carry on living together even though the agreement has stated that they will live apart. In these cases, a separation agreement can still be signed and the date of separation to be recorded in the agreement is the date where the parties become “two separate households under one roof” and when they stop sharing the same bed, cooking and eating together.
Advantages of a separation agreement
A separation agreement is preferable to a contested court order for the reasons of convenience and speed. Parties may enter into a separation agreement in order to avoid court proceedings because it is likely that a court order will not be made until a considerable amount of time has lapsed. these agreements are also becoming moire common in circumstances where many couples simply can’t afford to get divorced and decide to leave financial and property law issues to a later date, when economic conditions hopefully improve. It would also be a cheaper alternative for parties to enter into a separation agreement and furthermore this alternative would avoid the bitterness that could arise from confrontation in court proceedings. Another advantage of separation agreements is the flexibility it entails of allowing to include anything in the terms to be agreed between the parties. A husband, for instance, may agree to continue paying the outgoings and repair costs for the home in which his wife and child remain living in. Such a matter would not hold any weight by the divorce courts as they cannot enforce it under the Matrimonial Causes Act 1973 despite the parties applying for a consent order.
Finally by the parties agreeing the details of their separation amicably this reduces the need to spend a lot of money on legal and other professional costs.
Disadvantages of a separation agreement
A separation agreement cannot serve to be a guaranteed final solution to an end to a partnership and cannot overrule a court’s jurisdiction. A party to the separation agreement may seek further provision or relief from the court at the time of the divorce which the courts would consider and may grant despite a valid separation agreement being in force. Separation agreements are also not as easily enforceable as court orders.
Variation of separation agreements
Parties are allowed to make variations to a separation agreement which is in force without having to undergo a court application subject to both individuals agreeing to the variation and this is of course if there is not an insolvency situation with one of the parties, which changes the position. In the event of a disagreement arising relating to a proposed variation, a court application would need to be made and the court at its discretion will choose to reject the variation or incorporate it into the separation agreement.
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