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.
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.
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.
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.
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.
If you have any queries in relation to any aspect of family law you can submit them through our contact form. Alternatively if you would like to arrange an appointment or request a call back you can do so through the contact form.