Why do I need a separation agreement?
If, as a married couple or civil partners, you decide that you do not want to live together anymore, at some point you will need to sort out who gets what, both in terms of finances and possessions. If you can do this early on and make a formal, written agreement, it can save a lot of problems later on.
In England and Wales, if you have been married or in a civil partnership for less than a year, you can’t divorce or dissolve the civil partnership yet. However, a Separation agreement can be used to clearly set out the arrangements you have agreed upon.
While you can get a divorce within the first year of your marriage in Scotland a Separation agreement (also known as a ‘minute of agreement’) is still a good place to start sorting out your arrangements before actually divorcing.
Regardless of how long you’ve been married, you may not yet want to end the marriage or civil partnership but need a more formal arrangement until you make that final decision. A Separation agreement gives you security and flexibility without having to go to court.
In Scotland, to divorce or dissolve the partnership in the easiest possible way will probably mean that you will be divorcing or dissolving the partnership on the basis that you have been apart for one year and you both consent.
Set out how you want to divide your money and possessions now and avoid a fight in the future.
So what do I do?
England and Wales
Be completely open, fair and honest and don’t hide assets from each other. You are looking to create an agreement that the court will 'rubber stamp' if and when you divorce or dissolve the partnership.
If it is obvious to the court that you haven’t really agreed, the agreement is patently unfair, or that one party has been pushed into it, the court may rewrite your agreement.
Once your agreement has been agreed and properly signed, either party can apply to the court to change it. But if you want to avoid that cost, be completely open with each other and get it right from the start.
This is a very important document that will be the cornerstone of your divorce or dissolution settlement. If your assets are complicated or you have children, you should consider taking legal advice first.
As in England and Wales, you should be completely open, fair and honest and not hide assets from each other. However, such an agreement does not need to be ‘rubber stamped’ by the courts in Scotland. In fact, the minute of agreement is a legally binding document.
Note that a minute of agreement should be registered, to ensure that the document is legally enforceable and cannot be changed by one party alone. If one party defaults or breaches one of the agreed-upon terms, the other party can then apply to the courts to have this agreement enforced.
It is advisable to seek legal advice before agreeing on a financial support package. It is also advisable to have such an agreement recorded in writing by a solicitor in case of a future dispute.
For more information, read Minute of agreement in Scotland.
What if I've got pets?
The law treats pets as mere chattels in the same way as inanimate objects, such as cars or jewellery. Any arrangements regarding pets should therefore be agreed upon between the parties and recorded in the agreement (eg dog walking timetables, arrangements for cat holiday care and the division of future veterinary costs).
Ask a lawyer if you want to draft a document relating to your pet (eg a pet nup agreement, setting out your pet’s custody arrangement).
How can a separation agreement help?
A separation agreement can set the date in a legal document so that you know when to start divorce or dissolution proceedings.
It can set out clearly the decisions you have both made about how you are going to divide things up. It is in black and white and stops the 'but you said' arguments. You can see what was said in the agreement.
A separation agreement must be agreed upon after both parties have been fully informed about the other party’s property, pay, savings, pensions and any other financial arrangements.
It can actually help repair the damage between a couple. If you have both been fair and reasonable and reached a sensible agreement you can move on and that might mean revisiting why you separated in the first place.
Moreover, in Scotland, a minute of agreement is legally binding and can be enforced in the same way as a court order if the agreement is registered. As a result, any agreement reached on separation is fully binding on both parties.