If a married couple or civil partners can agree the terms on which they will live separately, they may enter into a separation agreement. The essence of a separation agreement is that it is an agreement. Both parties must consent to the terms of the agreement.
The agreement is a legally binding contract setting out each party’s rights and obligations to the other. The terms of the agreement are usually reached either through mediation or negotiation through solicitors. If agreement can be reached reasonably quickly between the parties and a separation agreement drawn up, it is cheaper and less stressful than taking a court case. Many couples formalise their separation in this way.
Mediation is not marriage counselling. Its purpose is not to help a couple to reconcile. Its purpose is to aid couples who have decided to separate to resolve any disputes they may have in relation to the key issues such as custody and access to children, maintenance and property rights. The mediator is neutral and encourages the separating couple to co-operate with each other in working out mutually acceptable arrangements that they will stick to. Any separating couple can avail of mediation, whether they are married or not. This includes same-sex couples.
Mediation normally takes up to six or seven sessions but this can vary depending on complexity. If agreement is reached, the mediator will draw up the terms of the agreement. It is recommended that people seek independent legal advice before signing the agreement.
Mediation is confidential and any communication with a mediator is not admissible if agreement is not reached and there are subsequent court proceedings.
It is advisable for couples who opt for mediation to ensure that they obtain legal and financial advice before attending mediation so that they know their rights and can make informed decisions.
Negotiation through solicitors
Where the agreement is negotiated through solicitors, each party must have their own solicitor to ensure that they receive independent legal advice.
Collaborative practice is a way of resolving family law matters, including separation and divorce. Both you and your spouse/partner work with collaborative lawyers. Everyone signs an agreement disqualifying your collaborative lawyers from representing you in court if the process breaks down. Neither lawyer can act for you in any contested court proceedings.
Through face-to-face meetings, you and your spouse/civil partner discuss and resolve issues such as custody and access to children, maintenance and property rights. The process is dependent on both parties making full and frank disclosure of all of their assets so that negotiations can be open and honest.
If the process is successful you will have an agreement with your spouse/civil partner which you will both have had responsibility for.
Not every lawyer is trained in collaborative law and it is likely to be more difficult to engage in the process if one of the lawyers is not so trained.
Deed of Separation
The actual document drawn up and signed by both parties, when they reach agreement, is often called a Deed of Separation and is a legally binding written contract. The main issues dealt with in a separation agreement are as follows:
- An agreement to live apart
- Agreed arrangements in relation to custody and access to children
- The occupation and ownership of the family/shared home and any other property
- Maintenance and any lump sum payments
- Indemnity from the debts of the other spouse/civil partner
- Succession rights .
It can be made into a rule of court by application to the court. This ensures that all the terms agreed upon can be legally enforced where covered by appropriate legislation. Information on making a separation agreement a rule of court is available on the Courts Service website.
Reversing a separation
If you and your former partner decide to get back together, you can apply to the court to have your deed of separation cancelled. You will have to satisfy the court that you have reconciled as a couple and that you intend to resume cohabiting as husband and wife.
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