A Guide to Our Seperation Agreement

by Kate Mccormik - Solicitor

Our guide to our seperation agreement provides full instruction on how to complete our document this guide will also inform you if you need any other information to complete this.

A Guide to Our Separation Agreement

This Separation Agreement creates a legally binding agreement setting out the terms that a married or cohabiting couple have agreed for their separation until the terms of the divorce have been finalised. The agreement is flexible and you can amend, delete and insert clauses as you want in order to facilitate the separation, provided that they are reasonable.

Clauses in this Separation Agreement

Cover page - you will need to insert the names of party 1 (the Husband) and party 2 (the Wife).

Between – this clause defines whom the Agreement is between. You need to insert the details of both parties to the Agreement here.

Background – this clause sets out the background facts. In part A) you should insert the date of the marriage and the names and dates of birth of any children of the marriage. In part B) you need to record the date of the separation. Part D) refers to Appendix A in which you will need to provide details of both parties’ finances.

Capital Payment – here you need to record any sum(s) paid by either party to the other in legal settlement of any claims that the other party may have against them from the separation until the divorce settlement has been finalised. This clause records the fact that the payment has been paid and makes receipt of such payment legally binding on the receiving party.

Property Contents - this clause documents any agreement that has been made as to the sharing of the contents of the family home. You will need to fill in the address here and attach any Schedule or inventory that you have, to the Agreement.

Sale and Transfer of Family Home – Clauses 3 and 4 document whether the family home has been transferred from joint ownership to one of the parties or sold to a third party. You will need to fill in the details in square brackets and delete any of the clauses that are not applicable.

Agreed Payments – this clause provides for one party to pay an agreed amount at regular intervals to the other whilst arrangements pending the divorce and transfer or sale of the family home.

Contact – this clause records the agreed arrangements for any children of the family under the age of eighteen. Normally they will live with one party and have specified contact periods with the other. You should record all the necessary arrangements here, which can be quite detailed, so that they can be relied on in the event of a dispute.

Agreement to live Separately and Apart –This clause formally releases both parties from their legal requirement to live together as married spouses or civil partners to cohabit and so prevents either party from alleging desertion on the divorce petition.

Agreement to Divorce – this clause records the fact that the parties have agreed to petition for a divorce and sets a deadline for doing this. It will not be necessary if a divorce has already been petitioned.

Lump Sum – this clause obliges the party who has retained ownership of the home to pay the proportion owed to the other party in respect of it by regular instalments. Alternatively, you may have agreed for the entire amount to be paid up front.

Maintenance for Spouse – where one party was financially supported by the other, this clause provides for the dependant party to continue to receive regular maintenance payments from the other party, up to an agreed amount or until the dependant party re-marries.

Reduction of Maintenance – this clause ensures that the person paying maintenance and child support, can reduce their maintenance payments if the child support payments go up, by the amount of the increase.

Child maintenance – this clause provides for the party who is not to be the children’s main carer to make further payments to the other, in respect of each child, for items such as school fees and clothing, in addition to any statutory maintenance that must be paid. This is a discretionary clause.

Maintenance by Standing Order – setting up a direct debit or standing order for maintenance can make things simpler and ensure that regular payments are made.

Termination – the maintenance payments for the other party and/or children in the Agreement, will cease upon the happening of any of the events in this clause. You should amend the items in square brackets as applicable.

Increase in Income – the maintenance payments under this Agreement must be increased or decreased in accordance to any changes in the payee’s income above the specified percentages.

Limit to Variation of Maintenance – this clause ensures that the parties may not vary the agreed maintenance payments, other than in accordance with clause 15.

Occupation and Transfer of Family Home – if the family home has not already been transferred to one of the parties or sold to a third party, clause 17 ensures that exclusive occupation is given to the party who is to reside there and that the other party will not do anything that could interfere with their occupation of the property. Clause 18 obliges the leaving party to transfer their interest in the property to the residing party.

Alternative Property – this clause allows the party remaining in the jointly owned home to be able to sell it and move house if they wish, provided that the property acquired is one that both parties have agreed upon.

Transfer with Charge Back – this clause obliges the party to whom the full ownership of the property is transferred to grant a charge back to the other party so that if the residing party should re-marry or die, the other party may regain ownership of the property.

Sale of Family Home – this clause set out practical arrangements for the sale of the home and how the proceeds of the sale are to be dealt with.

Family Business – this clause will only be relevant where there is a family business in which both parties are involved. If not, then it can be deleted.

Life Insurance Policy – this clause, if included, obliges both parties it take out life insurance policies for the benefit of the children listed at the beginning of the Agreement. Clauses 24 to 26 contain further detail relating to insurance arrangements which you may or may not wish to include.

Benefits at Death Under Personal Pension Plan and/or Retirement Annuity Contract – this clause and the following are designed to help ensure that if one party should die before drawing their pension, the benefits should go to the other party to satisfy any continuing obligation to make payment under the Agreement.

Agreement to Leave by Will – this clause obliges both parties to make a Will leaving an agreed proportion of their estate to the other party and/or children.

Contents – until the contents of the home have been distributed, this clause enables the non-residing party to access their belongings at the property at an agreed time(s).

Assets – this clause deals with certain joint assets and assumes that all other assets are to belong to the party owning them. Further items can be added to this clause as appropriate.

Closure of Joint Account/Credit and Debit Cards – these clauses deal with the practical matters of closing joint bank accounts and terminating jointly owned credit and debit cards.

Tax Indemnity – where tax liabilities remain outstanding in respect of certain transactions carried out by either or both parties, this clause states who is to be responsible for the payment of that tax.

Non-Disclosure of Information – this clause protects information relating to and contained in the Agreement from being disclosed by either party to anyone else apart from their professional advisors or unless they are obliged to do so by law.

Variation – this clause ensures that the Agreement is not varied unintentionally or otherwise by informal or oral statements or acts. It provides certainty and ensures that the provisions can be relied on exactly as they are set out in the Agreement, unless the correct procedure has been followed for amending them.

Jurisdiction – If either party is based abroad, you may wish to change the jurisdiction clause to reflect this and/or make it non-exclusive. Where the parties based in the UK, the jurisdiction should be exclusively that of England and Wales.

Signatories - this clause makes the Agreement valid. It must be signed by both parties in front of two independent Witnesses, who must also sign the Agreement. You should insert the name of the parties and Witnesses here and then have the Agreement signed by all parties. You should then date the Agreement on the cover sheet, at the top of page 1 and in the box in Background section B.
Both parties should keep a copy of the signed Agreement.

Appendix A – full details should be inserted into the Appendix by both parties of their financial interests and liabilities.