Mistakes to avoid when negotiating a separation agreement

14 January 2022 | Family Law | Author: Andrew Robinson

If you have decided to separate from your partner, there are certain practicalities that you will need to work out together. Even if you are unsure if you will divorce or dissolve your civil partnership, in the interim, you will need certainty about matters such as:

• Where each partner will live
• Arrangements for any children you have together
• How your money and assets will be divided
• Whether both parties can afford to pay their bills if they live separately

A separation agreement is a document that sets out the terms of your separation, addressing matters such as those listed above. However, negotiating a separation agreement can be challenging, particularly at a highly emotional time for you and your family. In this article, we take a look at some of the most common mistakes to avoid when going through the process of negotiating a separation agreement.

Feeling pressured into an agreement

In many cases, parties can feel pressured into agreeing to terms they are unsure of for the sake of ‘getting it done’. In family relationships, people can often put their emotions before their practical and financial needs, which can cause problems later on. In this situation, having a lawyer to fight for your best interests can be useful. A solicitor will listen to you and what you want from the agreement and negotiate the terms on your behalf.

Failing to consider the longer-term implications

While a separation agreement itself is not legally binding, when you enter divorce proceedings, the court will take into account your previous agreement and arrangements. As a result, it is important that you do not consider the terms of the agreement only as an interim arrangement but also the consequences for you and your family in the long term.

Make the agreement ‘formal’

While it may be simple to come to an informal agreement, if you want to protect your arrangement, you should take steps to ensure that it is formalised and recognised by a judge if you go on to divorce. A judge will normally recognise a separation agreement when the agreement is fair, both parties fully understood what they were agreeing to, and the document has been drafted by a solicitor. Generally, you and your partner’s financial circumstances must be the same as when you entered into the agreement.

Making financial commitments before the agreement is settled

Separation involves a lot of change. However, we would recommend holding off committing to a new rental agreement, mortgage, car finance or any other substantial financial commitment until the terms of the separation are clear. Your partner may have verbally committed to a financial arrangement, but this could be very different to what is set out in a formal document.