Making sense of Separation Agreements

Q: My wife and I have recently separated. How can I make sure that I still see the children and that we each have access to money to enable us to find new homes?

On separation, it is certainly sensible to document formally any arrangements made between yourself and your wife; not only will it avoid disagreement down the line about access to children and so on, but the terms you agree can later form the basis of divorce proceedings.

Separation Agreements
Separation Agreements may be entered into by both married and unmarried couples who have chosen to stop living together. Setting out these issues, and any other terms you wish, in writing allows both parties to move on with the reassurance that important matters have been negotiated and settled, and a document signed to record the details.

Your solicitor may advise you to enter into a Separation Agreement. Both you and your wife should take independent legal advice before signing up to this and you must both fully disclose to the other all relevant financial and other information. You may wish to discuss and agree terms such as:

• Who the children are to live with;
• When and how the other party will see the children;
• What is to happen to the family home;
• How you will separate joint assets such as your bank accounts;
• Who is to assume responsibility for any mortgage on the family home and whether any contributions are to be made by the other party;
• How other joint assets are to be shared.

Is the Separation Agreement legally binding?
Whilst the Agreement is not legally binding, insofar as it has not been issued by a Court under a Court Order, the Courts do consider seriously the terms of any Separation Agreement when making decisions in any future disputes between the parties and as part of divorce proceedings.

Separation Agreements are particularly beneficial in dealing with a couple’s financial matters early on in their separation. Many divorces are protracted as a result of disagreement when trying to reach financial settlement but if these issues are already agreed the divorce can be finalised much more quickly and painlessly.

Do we need to take part in mediation?
Whilst there is no legal requirement for you to partake in mediation prior to entering into a Separation Agreement (unlike financial proceedings, where a mediation session is mandatory), the terms of the Separation Agreement will need to be discussed and agreed between you and your wife. You may choose to do this directly between yourselves, through negotiation between solicitors or by way of mediation.

Negotiation between solicitors will likely prove more costly and time-consuming than an effective and professionally-led mediation session; if you are struggling to reach agreement on any matters yourselves, you may find it helpful to arrange a meeting and talk it through. A family mediator is completely impartial and their role is purely to allow you to resolve your differences satisfactorily to both of your wishes.

Our new family and matrimonial specialist Gillian is pleased to offer a free initial 30-minute appointment for all new cases.