A Separation Agreement is a document that may be drawn up and executed by the parties to a marriage, where that marriage has broken down, and where they do not wish to have the terms of the breakdown imposed by a court. In practice, the courts will in any case rarely impose the terms of a separation on the parties. A judge who is asked to impose terms will certainly encourage the parties to negotiate the terms of a fair agreement outside of the court, possibly through mediation.
Usually, the Separation Agreement will contain a clause agreeing to live apart, and it will make whatever provisions are required to deal with custody of and access to children, maintenance, division of matrimonial property, inheritance matters and so on.
Increasingly, separating couples are keen to maintain control of the way in which the Separation Agreement is drawn up. They are finding that entering mediation helps them to maintain control of how much it costs, how long it takes, and most of all, the substance of the Agreement. This means that a lot of the work that used to be done by solicitors – negotiating the terms of the Agreement by sending letters back and fourth – is now done by the parties themselves with the assistance of a mediator. When separation agreements are drawn up in mediation, they are often referred to as Mediated Agreements, and they are stated to be non-binding.
A mediated Separation Agreement will often form the basis of a legally binding Deed of Separation, which would be drawn up by the parties’ solicitors later, when they have had the benefit of independent legal advice. The provision of independent legal advice protects both parties by ensuring that they are aware of the long-term implications of every aspect of the Agreement. It also means that the terms of the Agreement are more likely to be considered binding by a court should they come before one at a later date. Finally, an Agreement executed with the benefit of independent legal advice can incorporate things like a consent to the sale of a property, which would remove the need for the spouses to contact one another when the sale is being made.
A Judicial Separation occurs when the terms of a Deed of Separation are made a “rule of court”. This procedure is sometimes required even when the parties have agreed to the terms of their separation. For example, where the parties wish to adjust the terms of a pension scheme, a court order will be required to empower the trustees of the pension scheme to do so.
If you are considering separating through mediation, read more about the process here.
If you have already decided to deal with your separation or divorce through mediation, find out how to get the most out of mediation with personal guidance, and protect your interests with independent legal advice.
Principal, Claire McCarthy Solicitor
