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Separation

A separating couple, whether married, in a civil partnership or cohabiting, who separate on amicable terms can enter into a Minute of Agreement, often called a Separation Agreement.

What is a separation agreement?

A separation agreement is a written agreement between separating couples. This agreement can regulate some or all of the matters arising from the breakdown of the relationship, such as the division of assets or future arrangements for children.

How do I get a separation agreement in place?

A formal agreement can be reached through amicable discussion either between the separating couple directly or with the help of a Mediator or through a formal Collaborative Family Law process. Commonly, an agreement is reached through discussion and correspondence between solicitors after each party has had the benefit of legal advice.

In Scotland a separation agreement is called a ‘Minute of Agreement’. Once the terms of such are agreed and it is signed, the document is sent to be registered for ‘preservation and execution’. This means that the terms are enforceable without the need for any further court intervention.

How does this apply to children?

If a separating couple have children, a Minute of Agreement can also regulate how they co-parent their children separately.

Such agreements can set out such where the children will live and how major decisions will be taken, as well as matters like contact with the non-resident parent, schooling, health and the regulation of financial maintenance. Provisions in a Minute of Agreement relating to children are not, however, directly enforceable, as would be the case with a court order, and the terms will often have to be revisited as a child gets older and the child’s needs change.

Can a separation agreement be changed later?

Generally, if parties have entered into a separation agreement with the benefit of legal advice, the financial aspects cannot be revisited or undone in the absence of agreement between the parties.

There are exceptions to this, however, and it is, therefore, very important therefore that you obtain legal advice before signing such an agreement.

Does a separation agreement mean I am divorced?

No. After a Minute of Agreement is concluded, if the parties are married, or in a civil partnership, a formal divorce or dissolution is still required.

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