Spouses, civil partners and cohabitants can enter into a Separation Agreement. An Agreement is an alternative to asking the Court to make orders about these matters and gives a couple the opportunity to make their own decisions about issues which directly affect them and their family.
Each Agreement is tailored to a family’s individual circumstances but an Agreement typically makes provision for the following subjects:-
- The Children
It records the agreements reached on how the care of a child is shared between parents and how important decisions about a child’s health, education and welfare are made.
- Financial Arrangements for the Children
A parent has an obligation to aliment or financially support their children and parents often prefer to agree how much is to be paid for this purpose and have it recorded in an Agreement, rather than involve the Child Maintenance Service or the Court. Provision can also be made for payment of school fees and the cost of childcare, extra-curricular activities, school trips, school uniforms and such like.
- Spousal Aliment / Periodical Allowance
Spouses and civil partners also have an obligation to aliment each other prior to divorce / dissolution and in some circumstances, payment of periodical allowance post-divorce / dissolution is justified. These arrangements can be recorded in an Agreement with provision for variation if there is a material change in circumstances.
- The Family Home and its Contents
The arrangements for the family home are generally the most important consideration, both in practical terms and financial terms. An Agreement will set out whether the home is to be sold or retained by / transferred to one of the parties, and the timescales for this. Provision will also be made for payment of the legal costs associated with this, payment of the household bills in the interim, how the equity in the home is to be divided between the parties and how the household contents are to be divided between the parties.
- Savings, Investments, Pensions and Business Interests
The division of funds in a bank account is relatively straightforward but specialist advice and drafting may be required in relation to the division of certain investments, pensions and business interests, particularly where a pension is to be shared between spouses or civil partners or there are tax considerations.
Again, the arrangements for the family car have a practical significance, particularly if the vehicle is subject to a finance arrangement. The Agreement can make provision for any finance being repaid and if required, the vehicle being transferred from one party to the other.
If a debt has been accrued during the course of a parties’ relationship, it may be fair and reasonable for that debt to be shared between the parties or retained by one party and the Agreement would set out the arrangements for repayment of that debt.
Once an Agreement has been signed, it is usual practice for an Agreement to be registered in the Books of Council and Session or the local Sheriff Court Books. The property and financial provisions of a registered Agreement can be enforced in the same way as a Court Order.
Depending on a couple’s circumstances, a series of Agreements may be prepared to deal with different issues or all issues may be addressed in one Agreement.
One of the Agreements is likely to be regarded as a “full and final settlement” Agreement which means that once it is signed by both parties (and unless it is subsequently set aside or varied by the Court on divorce or dissolution under Section 16 of the Family Law (Scotland) Act 1985), each party is giving up their right to make any further claims against the other party arising from the breakdown of their relationship.
It is also conventional to give up the right to inherit from each other in the Separation Agreement. These features of a Separation Agreement are particularly helpful if a couple is married or in a civil partnership and do not have grounds for divorce / dissolution immediately following separation.
The majority of separating couples settle the pertinent matters arising from their separation by way of a Separation Agreement rather than by Court action because it is more cost effective and allows parties to have more control over the outcome than putting their case in the hands of the Court. Furthermore, if an Agreement is put in place prior to divorce / dissolution, the divorce / dissolution process itself is much more straightforward and the Agreement can set out who will raise the action for divorce / dissolution and how it will be paid for.
Equally, there are couples who remain on amicable terms following separation and do not see the need to record any arrangements in writing but in our experience, relations can often deteriorate and when that happens, it is helpful if not essential to have a Separation Agreement in place.
In many cases, the terms of a Separation Agreement are complex and require a number of eventualities to be considered.
Therefore, we would always advise clients against drafting their own Agreement or downloading a style Agreement from the Internet.
At Aberdein Considine, all of our Solicitors have the skill and expertise required to draft an Agreement which meets the needs of our client and which can be enforced if required.
We would be happy to discuss any questions which you may have about this process.