Guide to Separation Agreements

More and more couples choose not to file for divorce immediately after a break-up and prefer drafting a separation agreement instead. This decision should be carefully reflected upon, as it can have serious consequences on how financial and property arrangements are made and on how the persons involved in the marriage or civil union continue their lives. In the following guide, we will expand upon the basics of separation agreements and clarify some of the most frequently asked questions on the topic.

What is a separation agreement?

Separation agreements (also called deeds of separation) are written agreements between spouses who have decided to stop living together. As the term would suggest, it is a voluntary arrangement and resembles contracts in that both spouses must enter the agreement without coercion. Although the procedure is less common than divorce, it can be very helpful for couples that need more time to decide how to divide goods, properties, children rights, etc.

The document describes how the spouses will split their money and property and what arrangements should be made for any children involved. If they are drafted adequately and respect contractual principles, separation agreements are legally binding. For this reason, both spouses must sign the papers with full knowledge of the separation facts. Should one of the spouses force the other to sign, then the agreement would not be enforceable.

For best results, spouses should receive legal counsel from two separate solicitors. Otherwise, there might be a conflict of interest, especially if there are any areas of disagreement.

Difference between separation agreement and divorce

The main difference between a separation agreement and a divorce is that in the former case, the couple are still legally married, while in the latter the marriage is legally ended. The separation agreement simply settles several rights and responsibilities that apply to the spouses when they are married, but do not live together.

What can a separation agreement contain?

There are no fixed templates for what terms the agreement should contain. It is up to the two spouses to assess their goals and priorities. Only after they have done this and reached a mutual agreement, can they draft the document. More often than not, couples mention the following aspects in the document:

• Financial clauses: whether or not financial maintenance stops once the two spouses start to live apart; whether or not one spouse will pay financial maintenance to the other;
• Material assets: when and how the couple's material assets will be divided. Some couples choose to divide assets right away while others choose to do this later;
• Children: couples who have children will establish with whom they will live and the visiting rights of the non-resident parent. Also, the agreement may contain information on who will provide financial maintenance for the children and how;
• Divorce: the date of the divorce and who shall cover the costs; 
• Interaction between the spouses: some couples may decide to establish in the agreement how they will interact in the future. For example, they might decide to meet or contact each other only under specific circumstances;

Benefits of a separation agreement

Separation agreements offer several key benefits that might encourage couples to choose them as an alternative to divorce:

• They are very flexible in terms of what aspects can be included; 
• Help couples establish separation terms in an amicable way, without getting the court involved;
• Are less time consuming and less stressful than filing for divorce;
• Are usually cheaper than getting a divorce;
• They are less radical, allowing couples some time away from each other so that they can think about a possible reconciliation;
• They do not dissolve marital benefits; 
• They are suitable in religiously sensitive contexts, when spouses want to live away from each other, but cannot get a divorce because it is against their religious beliefs;
• Should couples decide to file for divorce, the separation agreement can serve as basis for the divorce settlement;

Disadvantages of a separation agreement

As convenient as separation agreements may be, they are not to be regarded as a universally valid solution. They are not recommended for all couples and in some contexts they pose considerable disadvantages:

• They lack the finality and certainty of divorce;
• They do not prevent the spouses from making other claims in the future;
• They do not end the marriage. Legally, the spouses are still married, so they cannot enter another marriage or civil union.
• Because these agreements do not end the marriage, one spouse can still inherit some of the money and/or properties if the other dies without a will.
• If spouses are sure about getting divorced, separation agreements are not necessary;

What happens if you later decide to divorce?

In the majority of cases, separation agreements lead up to divorce. Thus, they can be included into the consent order. If the spouses have been living separately for less than five years, mutual consent is required for divorce. If the spouses have been living separately for more than five years, then one of them can get a divorce without the consent of the other party. Although the other party may object, the court usually rules in favor of the one filing for divorce.

Can the terms of a separation agreement be challenged?

Yes, the court may challenge the terms of the separation agreement if the court deems it necessary. The terms are presumably reasonable and fair, but in certain cases, especially when the rights of children are at stake, the court may challenge them.