Q. What is a Separation Agreement?
A: It is a contract between two parties and is therefore governed by the law of contract.
Q. What matters should we consider before making a Separation Agreement?
A: You should consider the level of conflict that could arise, for example about trying to agree a way forward on issues such as the family home, maintenance, pensions and any children matters. You need to be confident that you can resolve any contentious issues amicably. If the above matters have all been settled or terms agreed for inclusion in your Separation Agreement then you should have little difficulty in finalising the document with the assistance of a solicitor.
Q. Do I need to have a Separation Agreement or Judicial Separation before applying for divorce?
A: No – there is usually a specific reason why the parties do not want to apply for a formal divorce…and that is why they enter into a Separation Agreement, or apply to the court for a Judicial Separation.
Q. Can I continue to use my married name after the making of a Separation Agreement?
A: A wife can continue to use her married name after a Separation Agreement, and it does not automatically change on divorce either (see separate FAQs on Divorce)
Q. Can anyone help us agree the terms for the Separation Agreement?
A: Yes, a specialist family solicitor can provide you with advice and help with negotiations. You would usually be encouraged to consider trying to use Mediation or the Collaborative Process too. If you cannot agree the terms amicably – even with the assistance of a third party, then you are going to have to consider involving the court. This would mean one of you applying for a Divorce or Judicial Separation.
Q. Can I remarry after the granting of a Separation Agreement?
A: No. You are still legally married as a Separation Agreement does not dissolve the marriage. To remarry you must first obtain a Decree Absolute through divorce proceedings.
Q. Is the Separation Agreement legally binding?
A: The Separation Agreement is a contract and therefore the terms are usually legally binding upon you and your spouse. However, the family court may be persuaded to vary the terms in the Separation Agreement if they do not appear to be fair and reasonable, the document is not properly executed, there is a change in circumstance for one party, or one party claims they were pressured into entering into the Agreement.
Q. What can I do if my spouse does not honour the Separation Agreement at a later stage?
A: If your spouse breaches any term in a Separation Agreement, you would have to consider instructing a solicitor to try and put pressure on them to comply with the relevant term(s) and ultimately apply to the Court to enforce the term(s).