The contents of a separation agreement: what should be in one and why
This article is intended as an overview of the contents of a separation agreement.
If you are separating from your partner and are trying to decide whether a written agreement is appropriate, this article will give you an idea of the practicalities involved and the types of assets and responsibilities that a document aims to divide between you and your partner.
The agreement first seeks to outline the relationship background: the names of the separating couple making it, how long they've been living together and any children of the relationship or outside of it. It also states the date of the separation when it will come into effect.
In order for the agreement to be taken seriously by both parties and by the law it is essential that it clearly states the principles under which you are making it. This is where you acknowledge that the agreement is a true reflection of your intentions.
There are three basic principles that make a separation agreement likely to be upheld in court.
- You are entering into the agreement freely and voluntarily – neither party should feel under pressure or duress to agree to the terms, as this would imply it was not an agreement.
- Both parties have made full disclosure of all their assets and responsibilities – this is essential to end up with a fair agreement. For example the terms of the agreement can hardly be seen as fair if it is later discovered that one party has a financial income or burden which they have not revealed.
- That it is a full and final agreement – both parties accept that it encompasses all things relevant to the separation and agree on the settlements detailed within it. Here you're agreeing not to make any claims after the agreement.
There are also some clauses which can be found throughout such an agreement which allow for variations in it due to changes in circumstance.
Your agreement should deal with what is to be done in the event of:
- death of either party
- breach of the agreement
- re-marriage or co-habitation by either party
- other significant change of circumstance, for example change in income
In order to formalise 'full disclosure', the agreement should include several lists or schedules detailing all assets and responsibilities, their values and other relevant details. These lists are then referred to by the various sections that deal with different types of assets and responsibilities.
Your house or home
The agreement should set out what is to be done with the property you have been living in. For example, you may need to take steps to sell your house or flat and divide the proceeds from the sale according to the agreement. Alternatively one party may pay the other to gain sole possession of the property, or you may wait to sell until your children have matured. The agreement also addresses how any ongoing expenses associated with the process are to be split.
Here you decide who keeps what, and a time-frame for collecting personal items. You also agree to care for items until they are collected.
Financial and business assets
This includes actual or potential assets and businesses. Generally this section sets out the amounts of money to be transferred in order to achieve sole ownership of assets by each party. For businesses, the party leaving the business agrees to completely disassociate themselves from the business, giving up any title, business contacts, intellectual property etc.
You both have an equal responsibility to pay off debts that are in your joint names. Both of you are equally liable for all of the money. The consequence when you separate is that one of you may be able to afford to pay his or her share more easily than the other.
It is good to set out how joint debts will be repaid in a separation agreement, whether in full, in instalments (in which case interest is likely to be payable), and whether one of you pays more than the other.
Here the agreement sets out any payments – lump sum or periodic – which will go to a partner for their maintenance and/or for that of any children. There could be a clause here which allows for inflation in living costs.
This section ensures that both parties will do their utmost to ensure they both maintain the best possible relationship with their children, for example, by agreeing to avoid criticising the other partner to the children or obstructing their relationship in any way. The time that each partner is to spend with the children is set out.
Lump sum payment
Here it is agreed if there is to be a lump-sum payment to either partner: the amount, the time-frame and acknowledgement that this is a final payment.
Provision for divorce
If this agreement is intended as a precursor to divorce, this section ensures that both parties agree to this intention. It also states that they intend use this agreement as a basis for their divorce settlement.
The Net Lawman agreement then covers some clauses which will make it flexible to change in circumstance and fair in the eyes of the law, and provides a space in which the separating couple put their signatures.
We have another article that might be of interest on when and why to use a separation agreement.
If you are interested in using a separation agreement, see our version here.
Please note that the information provided on this page:
- Does not provide a complete or authoritative statement of the law;
- Does not constitute legal advice by Net Lawman;
- Does not create a contractual relationship;
- Does not form part of any other advice, whether paid or free.
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