Family Law

Separation Agreements

Essentially, a separation agreement is a binding contract between spouses and usually contains the following terms:

Agreement to live apart

This is a fundamental provision in every separation agreement where the parties agree to live apart.

Guardian and Custody of Children

If there are children under the age of 18 it would be usual for both spouses to remain as guardians. However, provision can be made for the custody of children to be provided to one spouse with rights of access being provided to the other spouse.

Maintenance

The amount of maintenance payable (if any) is the sum agreed as a result of negotiations that take place between your spouse’s solicitors and us. However, a maintenance order may be made if it appears to the court that a spouse has failed to provide such maintenance as is proper in the circumstances.

Property

It is usual for the separation agreement to detail how the property will be distributed.

Where the legal title to the family home is held in the sole name of one spouse and the other spouse directly or both directly and indirectly contributes to its acquisition that other spouse may successfully claim a beneficial interest in the family home. Direct payments would include monthly mortgage repayments.

The courts have held that monies contributed by a spouse for improvements in the family home do not amount to a contribution to its acquisition and unless there was an agreement to the contrary (either express or implied) such payments are ignored in determining a spouse’s beneficial interest.

Succession

This is the right to inherit from your spouse’s estate. It is usual for a clause to be inserted by the spouses renouncing their rights to inherit in each other’s estate.

Pensions

The trustees of your pension scheme are not bound by the terms of your separation agreement. The trustees can only make payments in accordance with the terms of the pension scheme.

Judicial Separation and divorce

By entering a separation agreement, you cannot apply to the courts for judicial separation. A separation agreement does not act as a bar to divorce proceedings in the future.

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