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At Hewetts Solicitors in Reading, we regularly get asked about Separation Agreements.
This is a short guide that will give you concise answers to the most frequently asked questions we receive. To get advice on your unique situation please contact Safeena Tufail, our expert family solicitor.
What is a Separation Agreement?
A separation agreement is a legally binding document that a married couple can use when they decide to live apart but are not yet ready or willing to divorce. This agreement outlines the terms of their separation, including arrangements for finances, property, and, if applicable, child custody and support. Essentially, it helps to manage the separation period by providing clarity and avoiding disputes. While it’s not the same as a divorce, it can lay the groundwork for the terms of a divorce should the couple decide to pursue it later.
Do You Need a Court Hearing to Have a Separation Agreement?
No, you do not need a court hearing to create a separation agreement. A separation agreement is a private contract between you and your spouse. As long as both parties agree to the terms, it can be signed without involving the court. However, if either party later decides to challenge the agreement, a court may be involved to review its fairness or legality.
Is a Separation Agreement the Same Thing as a Divorce Agreement?
No, a separation agreement is not the same as a divorce agreement. A separation agreement is used when a couple decides to live apart but remains legally married, while a divorce agreement finalises the terms of a couple’s separation when they legally dissolve their marriage. However, some terms of a separation agreement can be incorporated into a divorce agreement if the couple later chooses to divorce.
Do I Need a Lawyer for a Separation Agreement?
While it’s not legally required to have a lawyer for a separation agreement, it’s highly advisable. A lawyer can ensure that the agreement is fair, comprehensive, and legally sound. Without legal advice, you might miss important details or agree to terms that are not in your best interest. A lawyer can also help you understand your rights and obligations under the agreement.
What Does a Separation Agreement Address?
A separation agreement can address various issues, including:
Can I Submit an Agreement to My Spouse and Get Him or Her to Sign It?
Yes, you can draft an agreement and present it to your spouse for signing. However, both parties should ideally have independent legal advice before signing. This ensures that the agreement is fair and that neither party was pressured into signing something they didn’t fully understand.
What if I Suspect That My Partner Is Hiding Something?
If you suspect your partner is hiding assets or information, it’s crucial to address this before signing any agreement. You may need to seek legal advice or hire a financial expert to investigate further. A solicitor can help ensure that all relevant information is disclosed, and if necessary, legal proceedings can be initiated to obtain the required information.
I’ve Heard That a Separation Agreement Is Separate from All Other Agreements. Is This True?
Yes, a separation agreement is a distinct document from other agreements, such as prenuptial or postnuptial agreements. It is specifically focused on the terms of your separation. However, its terms can sometimes overlap with or be influenced by other agreements you have with your spouse.
Can My Spouse and I Specify Our Child Custody Arrangement in Our Separation Agreement?
Yes, you can specify child custody arrangements in your separation agreement. This includes who the children will live with, visitation schedules, and how decisions about the children’s upbringing will be made.
If We Can Specify Our Child Custody Arrangement, Does the Court Have to Approve It?
While you can agree on child custody arrangements in your separation agreement, the court always has the final say in matters concerning children’s welfare. If your agreement is later presented to the court, the judge will review it to ensure it is in the best interests of the children. If the judge believes it is not, they may alter the arrangements.
What if We Cannot Agree on Our Child Custody Arrangement?
If you and your spouse cannot agree on child custody, you may need to seek mediation or go to court, where a judge will make a decision based on what is in the best interests of the children. It’s often better to try and resolve these issues amicably to avoid the emotional and financial cost of litigation.
Can We Put in Our Agreement That One Spouse Shall Have Custody and Legal Decision-Making Rights?
Yes, you can agree that one spouse will have custody and make all major decisions regarding the children. However, this agreement should be made with the children’s best interests in mind, and it’s advisable to get legal advice before finalising such terms.
What Would Be Considered as "Major Decisions"?
Major decisions typically include matters related to the child’s education, medical care, religion, and significant life events. These are decisions that can have a long-lasting impact on the child’s life and well-being.
Would We Be Able to Specify a Joint Custody Arrangement in Our Agreement?
Yes, you can specify a joint custody arrangement in your separation agreement. This means that both parents share the responsibility for making major decisions about the child’s life. Joint custody can also include sharing the child’s living arrangements, though this must be carefully planned to ensure it works in the child’s best interests.
Would We Have to Declare Where the Child(ren) Would Live Under a Joint Custody Arrangement?
Yes, it’s important to specify where the children will live under a joint custody arrangement. This could involve splitting time between both parents’ homes or designating one home as the primary residence with regular visits to the other.
What if We Would Not Be Able to Agree on the "Routine Decisions" After the Agreement Has Been Executed?
If you cannot agree on routine decisions after the agreement is in place, you may need to return to mediation or, in some cases, court to resolve the issue. Routine decisions generally refer to day-to-day parenting choices, which ideally should be agreed upon to avoid conflict.
Can the Interests of the Children Be Included in the Agreement?
Yes, the separation agreement should focus on the best interests of the children. This includes their living arrangements, education, medical care, and general welfare. Ensuring that the children’s needs are prioritised can also make it easier to gain court approval if necessary.
Are There Other Clauses We Can Add, Which Address Issues Related to Education, Religious, or Social Activities?
Yes, you can include clauses in your separation agreement that address specific issues like education, religious upbringing, and participation in social activities. This ensures that both parents are on the same page regarding important aspects of the child’s development.
Can We Spell Out Our Child Support Agreement Within Our Separation Agreement?
Yes, child support can be detailed in your separation agreement. This includes how much will be paid, how often, and for how long. However, child support must adhere to the legal guidelines set by the Child Maintenance Service in England and Wales, and the court has the authority to adjust the agreement if it’s not in line with these guidelines.
If the Judge Sets Aside the Child Support Part of the Agreement, Is the Rest of the Agreement Invalid?
No, if a judge sets aside the child support portion of the agreement, the rest of the agreement can still remain valid. The judge may modify just the child support terms while allowing the other provisions to stand.
Can My Separation Agreement Stop My Spouse from Moving Away with the Children?
A separation agreement can include provisions to prevent your spouse from moving away with the children without your consent. However, such a provision would need to be reasonable and in the best interests of the children. If contested, the court would have the final say on whether such a restriction is enforceable.
Can I Have My Separation Agreement Provide for the Support of Our Children Through College?
Yes, your separation agreement can include provisions for supporting your children through college. This might include financial contributions to tuition, accommodation, and other related expenses. However, such provisions are voluntary as the legal obligation to pay child support typically ends when the child reaches 18 or finishes secondary education.
If you would like a fixed fee appointment to discuss these or any other family matters, please contact Safeena Tufail, Solicitor, Mediator, Family Law Department of Hewetts Solicitors.
Email Safeena Tufail at S.Tufail@hewetts.co.uk or call Reading 0118 957 5337
Published on 03/09/2024