When a marriage breaks down, one of the options available to a separating couple is to negotiate and sign a separation agreement, a private, legally binding contract that sets out how they will live apart and divide their assets. This is distinct from a judicial separation or divorce, which are formal court processes.
What Is a Separation Agreement?
A separation agreement (also called a deed of separation) is a written contract between two separating spouses that is negotiated and signed privately, without going to court. It sets out the agreed arrangements for the couple going forward. A well-drafted separation agreement typically covers the family home and other property, financial arrangements and maintenance, pensions, custody and access arrangements for children, succession rights, and any other financial matters.
Is a Separation Agreement Legally Binding?
Yes. Once signed, a separation agreement is a legally binding contract. Both parties are obliged to comply with its terms. It can be made a rule of court, which gives it the additional force of a court order and makes enforcement easier. It does not, however, dissolve the marriage, only a divorce does that.
How Is a Separation Agreement Negotiated?
Separation agreements are typically negotiated through solicitors, with each party represented by their own solicitor. Each party receives independent legal advice to ensure they understand what they are signing and that their interests are protected. Some couples use collaborative law (where both solicitors work together with both parties in a non-adversarial process) or mediation (where an independent mediator helps the couple reach agreement) to negotiate the terms.
It is strongly advisable for both parties to have their own independent legal advice before signing any separation agreement. An agreement signed without proper advice may be challenged later on the grounds that one party did not fully understand what they were signing.
A separation agreement can be a good option when both parties are willing to negotiate in good faith, when the financial situation is relatively straightforward, when both parties want to avoid the stress and expense of court proceedings, and when both parties want certainty and privacy (court proceedings are public; separation agreements are private).
It is not suitable where there is a significant power imbalance or domestic abuse, where one party is not making full financial disclosure, or where there are complex financial issues that require court intervention to resolve.
What Is the Difference Between a Separation Agreement and a Judicial Separation?
A separation agreement is a private contract negotiated between the parties. It does not involve the court (unless you choose to make it a rule of court). A judicial separation is a formal court process that results in a court order. The practical outcome can be similar, but a judicial separation gives the court oversight of the arrangements and is more appropriate where agreement cannot be reached or where enforcement is likely to be an issue.
What About Divorce Later?
A separation agreement does not prevent you from later applying for a divorce once you meet the legal requirements (two years living apart out of the previous three). The court in divorce proceedings will take the existing separation agreement into account, and if circumstances have not changed significantly, may make orders broadly consistent with it.
How Saor Law Can Help
Saor Law provides free legal guidance to people going through separation in Ireland. We can help you understand your rights before entering into negotiations, review whether a proposed agreement is fair, and explain what the process involves. Book a free call with our team today.