What is a Separation Agreement?

A Separation Agreement or Minute of Agreement is a written contract between two spouses, or civil partners who have separated. It outlines and regulates any agreement reached over financial matters such as division of property, as well as child care arrangements.

Many couples opt to enter into such an Agreement when they are not yet able or ready to divorce or dissolve their civil partnership. Such Agreements provide structure and stability during an uncertain time and can pave a smooth way forward to proceed with divorce or dissolution of a civil partnership when the time is right.

Agreement regarding separation can be reached in several ways:

• Direct Discussion – The separating couple can negotiate terms directly and come to an amicable agreement without third-party involvement.
• Mediation – A neutral Mediator helps facilitate discussions and assists both parties in reaching a mutually acceptable agreement.
• Collaborative Family Law – Each party is represented by a collaboratively trained lawyer, and all discussions take place in structured meetings with a commitment to resolving matters without litigation.
• Solicitor Negotiation – Each party receives legal advice from their solicitor, and the agreement is reached through discussions and correspondence between legal representatives.

Some important details to include in Agreement are:

Financial arrangements

This covers everything related to money, including income, debts, and ongoing financial commitments. It can include reference to whether or not ongoing financial support will be paid by one party to the other, either temporarily or long-term. If maintenance payments for children have been agreed directly between parents then those can be included too. Responsibility for payment of school fees can also be included as well as financial contributions for things like extracurricular activities, and any other additional expenses.

Property and living arrangements

Agree who will continue living in the family home and who will be responsible for mortgage or rent payments as well as how utility bills and maintenance costs will be managed. The agreement can also set out the terms of any sale or transfer of a matrimonial or partnership property.

Division of assets and personal belongings

Dividing shared possessions and contents of a family home can be an emotional process, so this section helps set clear agreement on who will keep what.

If there are bank accounts, shares or other assets detail how these will be divided.

Provisions relating to Pension Shares can also be included.

Childcare arrangements

A Separation Agreement can outline where the children will live and how much time they will spend with each parent. While it may not be legally binding in the same way any financial agreement reached will be, it serves as a valuable reference to guide co-parenting and helps establish a framework for making decisions about the children’s education, health, and overall well-being, ensuring a smooth and cooperative co-parenting approach.

Is a Separation Agreement binding?

Once a separation agreement is signed with the opportunity of independent legal advice, it is generally considered legally binding, and the financial aspects cannot be revisited unless both parties agree to make changes.

In Scotland, the courts follow the principle that a separation agreement will generally not be set aside or varied unless it can be shown that it was not fair and reasonable at the time it was entered into, not just in hindsight. This is set out in section 16 of the Family Law (Scotland) Act 1985.

The Minute of Agreement is an important document, so before signing, it is essential to fully understand its contents and ensure that you consider terms are fair and reasonable. Taking legal advice from a specialist Family Law Team is recommended.

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The information and opinions contained in this blog are for information only.  They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice.  Before acting on any information contained in this blog, please seek solicitor’s advice from Gilson Gray.