Separation Agreement
If you are recently separated, or are contemplating separation from your spouse or
partner, it can feel a little overwhelming to know what to do and in what order. For
many people, they will be dealing not only with the emotional impact of a separation,
but also concerned over the financial impact and implications for children. Often
couples are not focused on divorce, or dissolution of a civil partnership, but instead
want breathing space and financial clarity for them to rebuild their new lives.
‘A separation agreement can be the ideal solution,’ says Akash Soni, a Solicitor & Mediator in
at Breakthrough family Law Solicitors. ‘This is a written contract outlining the rights and
responsibilities of each spouse or partner following their separation. You do not
need to have been married for a separation agreement to be right for you. Many
cohabiting couples also benefit from a separation agreement to obtain clarity over
their finances. For religious reasons, some clients also prefer this route to a divorce
as it does not dissolve a marriage.’
What is a separation agreement?
A separation agreement is typically drafted between solicitors (one for each person)
and addresses critical issues such as asset division, mortgage payments, spousal
support, and childcare arrangements. As it is a contract, it will be specific for each
separating couple and can incorporate terms to cover their particular needs.
Choosing to enter into a separation agreement can be hugely beneficial. It not only
helps in minimising conflict but also provides a clear framework that both spouses, or
partners, can rely on. By defining terms in advance, you can avoid the uncertainties
and potential disputes that can arise during relationship breakdown. This proactive
approach enables you to focus on your future rather than becoming entrenched in a
protracted and potentially costly court battle.
A separation agreement is not a court order and so it is not automatically legally
binding. But if entered into correctly, it will be highly persuasive in any dispute which
goes to court. This needs to be borne in mind when negotiating a separation agreement, as certain steps will help ensure the agreement will be upheld by any
future court that may be asked to review it.
Initial legal advice
The first step in negotiating a separation agreement is to seek initial legal advice. It
is important that you obtain this advice from an experienced family lawyer. We have
a specialist family law team, and one of our lawyers will meet with you to take your
initial instruction, provide you with tailored advice on your options and potential
entitlements, before assessing what is important and agreeing a plan to best achieve
your objectives.
We will guide you through the potential outcomes and how we can best overcome
any likely pitfalls, as well as helping you identify the key issues that need to be
addressed in any agreement.
Guidance over discovery
The next phase involves ‘discovery’, which is the legal process of gathering all
relevant information regarding your financial situation, assets, and liabilities. This
step is crucial to ensure that everyone has a comprehensive understanding of what
is at stake.
We will advise you on the extent of discovery that will be required. We can assist
you in compiling documentation that may include bank statements, property deeds,
investment portfolios, crypto currency, and any other financial records whether held
in your sole name, or jointly with another. A ‘cards on the table’ approach is
expected, and discovery must be both full and frank. Any failure to provide full
discovery may result in an agreement being vulnerable to be set aside.
We will also seek financial discovery from your spouse or partner via their solicitors.
We will analyse their discovery on your behalf and advise you on any irregularities or
areas where we need to seek further documentation or clarity from them.
Understanding your legal entitlements
Understanding your legal entitlements is vital when negotiating a separation
agreement. This includes knowledge of how assets will be divided, the possibility of
spousal support, and the arrangements for children, if applicable.
We will explain the legal principles that govern asset division, which may include
considerations such as the length of the marriage or period of cohabitation, each of
your financial contributions, and the needs of any children. This will provide you with
the understanding and knowledge to make an informed choice in relation to any
proposals you may wish to put forward to your former spouse or partner. It will give
you confidence to know how best to secure your own financial future.
It is worth noting that separation agreements can be customised to reflect individual
circumstances, making it crucial to have a clear grasp of your entitlements. This step
is not only about knowing what you may receive, but also about understanding your
obligations.
Negotiations and exploring options
The negotiation phase is critical in determining the terms of your separation
agreement and can take various forms. Negotiations can be conducted through
direct discussions between you and your former spouse or partner, facilitated by
solicitors, or through mediation. Negotiations can also be commenced via putting
forward a written proposal to settle on a ‘without prejudice’ basis (meaning it would
be held secretive to any future court proceedings).
We will advise you on the best approach based on your unique situation and the
dynamics of your relationship. Regardless of the method chosen, effective
communication is key. Being open to compromise, while also remaining firm about
your needs will contribute to a successful negotiation.
Reaching settlement and an agreement
After negotiations have been concluded, the next step is to draft the separation
agreement. This document must accurately reflect the terms that have been agreed
upon, including financial arrangements and any child-related decisions.
We will ensure that the agreement is comprehensive and protects your interests both
now and into the future. Any agreement will include specific details, such as the
division of assets, any spousal support obligations, and childcare arrangements and
any other aspects that have been agreed. Clarity is essential; vague terms can lead
to misunderstandings and disputes later on. We have an experienced team of
solicitors who specialise in this area, and we will draft the agreement for your
approval before it is sent to the solicitor of your former partner or spouse.
It is important that both parties carefully review the agreement before signing. This is
also an opportunity to raise any final questions or concerns. After both parties sign
the agreement, it becomes a legal contract.
How we can help
By obtaining initial advice, understanding your entitlements, and engaging in
thoughtful negotiations, you can secure an outcome that reflects your needs and
protects your interests. If you are considering a separation and want to explore your
options, our team of experienced solicitors is here to help.
Contact us today for a consultation and take the first step toward a clearer and more
secure future. Understanding your rights and having the right support can empower
you during this challenging time. Let us guide you through the process of negotiating
a separation agreement to ensure a fair and amicable resolution.
For further information, please contact our family law team on 01494 776696 or email [email protected]. Breakthrough Solicitors has offices in Harrow, Milton Keynes & London.
This article is for general information only and does not constitute legal or professional
advice. Please note that the law may have changed since this article was published.