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What is a Deed of Separation?

What is a Deed of Separation?
2 February 2018

What is a Deed of Separation?

A deed of separation is a legal agreement made between a married couple or a couple in a civil partnership who have decided they no longer want to live together.   The agreement, also known as a separation agreement, sets out the couple's rights and responsibilities to each other and any children of the relationship.  It is not the same as a divorce but a deed of separation can be used even if the couple eventually decide to divorce.

Agreeing Terms in a Deed of Separation

Both people in the relationship must agree to the terms in order to make a legally binding deed of separation.  One of the partners cannot impose an agreement upon the other.  The terms of the agreement can be reached through mutual discussion, if the relationship split is particularly amicable.  More often than not, however, mediation of some form is required.

Mediation isn't marriage counseling since the point is not to get the couple back together again but to help them agree the terms of their separation.  There are a range of issues that need to be discussed, agreed and set out in a separation agreement including:

  • custody of and access to children of the relationship
  • maintenance payments (for one of the partners and/or children)
  • property rights e.g. what happens to the family home.

Using a Mediator

A mediator is someone trained in helping resolve disputes and is a neutral party.  Their job is to help the couple work out how to move forward.  Agreeing the terms to include in a deed of separation is one of these steps.  Mediation can often take a bit of time - several sessions are typical.  You can learn more about mediation and and find a local registered mediator near you at the Family Mediation Council website. Depending on your circumstances, legal aid might be available to help with costs.

Using a Solicitor

Some couples use solicitors to negotiate their deed of separation.  Both parties need to have their own, independent solicitor so there is no conflict of interest.  It is worth noting that very few solicitors offer fixed-fee services for this kind of work, so the legal bills can pile up quickly if the negotiations are not straightforward.

Drafting a Deed of Separation

While there is not a single, standard format that a separation agreement must take the issues that would generally be covered:

  • a specific statement that both parties agree to and wish to live apart
  • details of how any children will be cared for, access and custody arrangements
  • whether or not divorce proceedings are planned for the near future
  • details of any lump sums payable to either partner, including details such as the rate of interest payable of late payments
  • details of any regular, maintenance payments payable to either party
  • details of maintenance payments for any children
  • arrangements for the family home e.g. whether one party lives there or if it is sold and the proceeds divided between them.

The calculation of maintenance payments can be quite complicated and limitations put on the duration of payments.  It's not uncommon for the separation agreement to set out a range of circumstances under which maintenance payments will cease including:

  • death of either party (rather obviously)
  • if the party receiving maintenance lives with someone else for more than a certain length of time e.g. 6 months
  • the couple move back in together for a minimum period of time e.g. 3 months
  • a court order is made varying the terms of the agreement.

 Is a Deed of Separation Legally Binding?

The courts are likely to uphold a well-drafted separation agreement.  They would be likely to disregard the agreement if the circumstances of either party had changed significantly since drafting, if there were concerns of coercion, or if the agreement was strongly biased in favour of one party and the other had not had adequate legal advice before signing.

Should the couple subsequently decide to divorce or end their civil partnership, then the courts may use any existing deed of separation is a starting point for the divorce settlement if the deed was shown to be a good working agreement.

Template Deed of Separation

The Clickdocs deed of separation template allows you to draft your own separation agreement.  Both parties may still wish to seek independent legal advice before signing an agreement.

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