‘A separation agreement can be the ideal solution,’ says Nicola Green, Trainee Solicitor in the family team with QualitySolicitors Parkinson Wright. ‘This is a written contract outlining the rights and responsibilities of each spouse or partner following their separation. You do not need to have been married for a separation agreement to be right for you. Many cohabiting couples also benefit from a separation agreement to obtain clarity over their finances. For religious reasons, some clients also prefer this route to a divorce as it does not dissolve a marriage.’
What is a separation agreement?
A separation agreement is typically drafted between solicitors (one for each person) and addresses critical issues such as asset division, mortgage payments, spousal support, and childcare arrangements. As it is a contract, it will be specific for each separating couple and can incorporate terms to cover their particular needs.
Choosing to enter into a separation agreement can be hugely beneficial. It not only helps in minimising conflict but also provides a clear framework that both spouses, or partners, can rely on. By defining terms in advance, you can avoid the uncertainties and potential disputes that can arise during relationship breakdown. This proactive approach enables you to focus on your future rather than becoming entrenched in a protracted and potentially costly court battle.
A separation agreement is not a court order and so it is not automatically legally binding. But if entered into correctly, it will be highly persuasive in any dispute which goes to court. This needs to be borne in mind when negotiating a separation agreement, as certain steps will help ensure the agreement will be upheld by any future court that may be asked to review it.
Initial legal advice
The first step in negotiating a separation agreement is to seek initial legal advice. It is important that you obtain this advice from an experienced family lawyer. We have a specialist family law team, and one of our lawyers will meet with you to take your initial instruction, provide you with tailored advice on your options and potential entitlements, before assessing what is important and agreeing a plan to best achieve your objectives.
We will guide you through the potential outcomes and how we can best overcome any likely pitfalls, as well as helping you identify the key issues that need to be addressed in any agreement.
Guidance over discovery
The next phase involves ‘discovery’, which is the legal process of gathering all relevant information regarding your financial situation, assets, and liabilities. This step is crucial to ensure that everyone has a comprehensive understanding of what is at stake.
We will advise you on the extent of discovery that will be required. We can assist you in compiling documentation that may include bank statements, property deeds, investment portfolios, crypto currency, and any other financial records whether held in your sole name, or jointly with another. A ‘cards on the table’ approach is expected, and discovery must be both full and frank. Any failure to provide full discovery may result in an agreement being vulnerable to be set aside.
We will also seek financial discovery from your spouse or partner via their solicitors. We will analyse their discovery on your behalf and advise you on any irregularities or areas where we need to seek further documentation or clarity from them.
Understanding your legal entitlements
Understanding your legal entitlements is vital when negotiating a separation agreement. This includes knowledge of how assets will be divided, the possibility of spousal support, and the arrangements for children, if applicable.
We will explain the legal principles that govern asset division, which may include considerations such as the length of the marriage or period of cohabitation, each of your financial contributions, and the needs of any children. This will provide you with the understanding and knowledge to make an informed choice in relation to any proposals you may wish to put forward to your former spouse or partner. It will give you confidence to know how best to secure your own financial future.
It is worth noting that separation agreements can be customised to reflect individual circumstances, making it crucial to have a clear grasp of your entitlements. This step is not only about knowing what you may receive, but also about understanding your obligations.
Negotiations and exploring options
The negotiation phase is critical in determining the terms of your separation agreement and can take various forms. Negotiations can be conducted through direct discussions between you and your former spouse or partner, facilitated by solicitors, or through mediation. Negotiations can also be commenced via putting forward a written proposal to settle on a ‘without prejudice’ basis (meaning it would be held secretive to any future court proceedings).
We will advise you on the best approach based on your unique situation and the dynamics of your relationship. Regardless of the method chosen, effective communication is key. Being open to compromise, while also remaining firm about your needs will contribute to a successful negotiation.
Reaching settlement and an agreement
After negotiations have been concluded, the next step is to draft the separation agreement. This document must accurately reflect the terms that have been agreed upon, including financial arrangements and any child-related decisions.
We will ensure that the agreement is comprehensive and protects your interests both now and into the future. Any agreement will include specific details, such as the division of assets, any spousal support obligations, and childcare arrangements and any other aspects that have been agreed. Clarity is essential; vague terms can lead to misunderstandings and disputes later on. We have an experienced team of solicitors who specialise in this area, and we will draft the agreement for your approval before it is sent to the solicitor of your former partner or spouse.
It is important that both parties carefully review the agreement before signing. This is also an opportunity to raise any final questions or concerns. After both parties sign the agreement, it becomes a legal contract.
How we can help
By obtaining initial advice, understanding your entitlements, and engaging in thoughtful negotiations, you can secure an outcome that reflects your needs and protects your interests. If you are considering a separation and want to explore your options, our team of experienced solicitors is here to help.
Contact us today for a consultation and take the first step toward a clearer and more secure future. Understanding your rights and having the right support can empower you during this challenging time. Let us guide you through the process of negotiating a separation agreement to ensure a fair and amicable resolution.
For further information, please contact Nicola Green or a member of the family law team on 01905 721600 or email worcester@parkinsonwright.co.uk
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.