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What is a Separation Agreement and When Might I Need to Use One?

MSHB Settlement agreements

Separation is hard for any couple but going through drawn-out and fractious court proceedings can substantially add to the levels of stress and anxiety felt by everyone involved. In this blog, our family law solicitors explain how a Separation Agreement can help couples to resolve matters more amicably.

What is a Separation Agreement?

A Separation Agreement is a formal legal agreement that can be prepared by married couples, civil partners and cohabiting couples when they decide to separate. It sets out how they will share assets and liabilities between them and who will be responsible for any joint bills. Separation Agreements will often cover the agreed care and financial arrangements for any children. This can include matters such as where the children will live and the amount that will be paid in child maintenance.

When can a Separation Agreement be used?

You can create an agreement if you and your ex-spouse or ex-partner are thinking about getting divorced or dissolving a civil partnership. Having an agreement in place means that you will not need to ask the court to sort out your finances and arrangements for the care of your children when you seek a divorce or dissolution. Cohabiting couples can make a Separation Agreement when they decide that they will no longer live together.

Is a Separation Agreement legally binding?

Yes, provided that it is properly prepared and correctly signed, the agreement can be enforced in the same way as a court order once it has been registered. There are circumstances when the court will vary (i.e. change) or set aside a Separation Agreement, so both parties must get legal advice to ensure their interests are protected against potential challenges.

When might a Separation Agreement be varied or set aside?

The court will look at all the circumstances surrounding how the agreement was brokered and entered into. If one of the parties pressurised the other into signing the agreement, for example by making contact with their children conditional on them signing, this could be grounds for having the Settlement Agreement set aside.

You should both receive legal advice from separate solicitors. Your lawyer should make sure to insert a clause into the agreement stating that you both had the opportunity to do so, even if your ex-spouse or partner chose not to.

If it subsequently comes to light that one of the parties failed to provide full disclosure of their finances, this could potentially lead to a settlement agreement being set aside. Again, it is essential to seek guidance from an experienced solicitor before signing an agreement if you have any concerns about financial disclosure.

How is a Separation Agreement prepared?

An agreement is reached through negotiation between the spouses or partners and their solicitors. Once you reach a mutually acceptable agreement, a written document detailing what you have decided must be drafted and registered.

Contact our Family Law Solicitors, Glasgow, Scotland

For more information and advice on Separation Agreements in Scotland, call Miller Samuel Hill Brown today on 0141 221 1919 or fill in our online contact form.

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