Should I sign a separation agreement?

If spouses separate, they can enter into a separation agreement which provides for maintenance, care of the children and any division of property, as an alternative to divorce proceedings. These agreements are widely known as separation agreements, maintenance agreements or post-nuptial agreements and can be made either before or after the parties separate. Whilst these different forms of agreement do offer some slight distinction between them, they share a fundamental set of principles that shows them as being more alike than not.

These type of agreement operate like any other form of legal contract and must be formed in accordance with contract law principles – including the crucial element of an intention by the parties to create legal relations. The agreement can be challenged by one of the parties on the grounds of fraud, mistake, undue influence etc and so it is vital that both parties obtain independent legal advice on the impact of entering into the agreement.

The separation agreement is by nature bespoke to the parties to a marriage, but frequently cover similar territory. Firstly, the parties will likely wish to express a that they are separated and living apart. Although it may appear a fairly obvious point, it is fundamental to clarify this point in the agreement, enabling the parties to have a broad range of scope for divorce at a later stage, if required. Most post-nuptial agreements do not need to contain such a clause, as it is anticipated that the parties will continue to enjoy their relationship together as a married couple.

The separation agreement is likely to include terms for maintenance payments upon separation. This may cover both spousal and child maintenance. In relation to the parties’ children, any agreement to pay money will be binding. However a separation agreement cannot oust the Child Maintenance Services’ jurisdiction, so either party may apply to the CMS at a later time, to review these payments. Likewise, either party may later apply to the court for a determination on the appropriate level of spousal maintenance to be payable as part of divorce proceedings, should they be initiated. The courts are not bound by the terms of the agreement when considering spousal maintenance, but it will likely be a factor taken into consideration when assessing the level of any appropriate payments to be made.

If appropriate, the separation agreement can also include provision about the former family home, or other property owned by the parties.

It is not uncommon for provision to be made within an agreement, setting out with whom the children should live and how much contact they will have with the non-resident parent. Terms in an agreement detailing this arrangement will not be binding on the courts, should one party make an application under the Children Act 1989. However, the terms of the agreement may begin to determine the initial level of contact, before such an application is heard and thus be considered by the court, when assessing the “status quo” principle.

Serving Bedford, Northampton and Milton Keynes, our lawyers can help you with your family law and divorce matters. If you would like to discuss your separation with one of our specialist solicitors, contact us on 01234 889777 to take advantage of our free initial consultation service.


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