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A couple whose marriage has broken down need not resort to the courts to work out an acceptable agreement concerning the children, maintenance and property. If they can agree to separate, the details can be worked out through mediation or through legal representatives and a Deed of Separation drawn up which when accepted by both sides, signed and witnessed, is a legal contract.
Q1: What is a separation agreement?
A1: It is a legal, written contract between a husband and wife setting out their future rights and duties, to come into force at the time the deed specifies.
Q2: How many clauses will the separation deed have?
A1: The first clause and the essence of the document is the agreement to separate and not to disturb or interfere with the other spouse. Otherwise there is no limit to the number of clauses and provision may be made for all aspects of the parties' future relationship.
Q3: What about financial arrangements?
A3: These are important and include: maintenance, that is financial support, for the spouse(s) and/or children; tax, mortgage/rent payments, ownership and occupation of the family home, disposal of personal property, arrangements for outstanding debts, pension provision, transfer of property or other assets between the spouses. It is essential that the agreement contains full and proper provisions relating to all financial matters.
Q4: What about a maintenance clause?
A4: This clause will state the sum of money payable regularly by the spouse who is earning to the non-earning spouse and children. It should include: income tax division, provision for regular increase in line with inflation and for variation in accordance with any changes in the parties' financial circumstances; how and how often payments should be made. Thought should be given to future expenses in regard to the children, i.e. medical, travelling and education expenses.
Q5: How can the agreement deal with children of the marriage?
A5: Under the Guardianship of Infants Act 1964 both parents are recognised as joint legal guardians of their children and remain so after separation. The everyday care and control of the child may become the responsibility of one parent. In legal terms that is called having custody of the children. It is also possible to agree that both parents will share the responsibility as equally as possible, and have joint custody.
Q6: What is access?
A6: It is very important for the parent without custody to see the children on a regular basis. Regular access with a certain amount of flexibility is generally considered the best option. The following should be considered: how often access is to be exercised and for how long, i.e. hours weekly or a whole day; whether access includes overnight stays; where the meeting is to take place in the family home or elsewhere; who is to have the children for holidays. It is also important to state the circumstances in which a child may be taken out of the country and who will be the custodian of the child's passport.
Q7: Must all access be included?
A7: Where there is complete agreement it may be enough to state simply that the non-custodial parent will have reasonable access.
Q8: What will the agreement say about the family home?
A8: Who has ownership rights in it and in what shares. Who will live in it and who will pay for it. It will deal with the question of rates, rent/mortgage payments, repairs, and improvements. It may also include provision for the transfer of the interest of one spouse to the other spouse or the sale and disposal of the family home and/or for alternative accommodation.
Q9: What is a non-molestation clause?
A9: It is a clause which restrains one party from bothering the other. For example, it could restrain the spouse who is no longer living in the family home from moving freely in or out or leaving possessions there. Or it could prevent one spouse from turning up at the other's place of employment and causing annoyance.
Q10: What happens to a spouse's right to inheritance if the other spouse dies when they have legally separated?
A10: Unless these rights are expressly renounced in writing s/he will be treated as the other's widow/er.
Q11: In what situation might a spouse renounce succession rights?
A11: Renouncing Succession Rights is a serious matter. You need to be sure that it is in your best interest and legal advice should be sought before taking such a step. If it is agreed to divide all property on the break-up of the marriage, or if the parties are young and only married for a short time, then the spouses might agree to renounce their succession rights. Pension rights could have an important bearing here.
Q12: Can either party insist on the inclusion or omission of clauses?
A12: The separation contract depends upon the assent of both parties to all of it. Neither may insist or demand, although the parties and their solicitors can continue to negotiate until total agreement is reached. Protracted negotiations are very expensive. Sometimes a solicitor will advise his/her client to accept an unwelcome clause in return for a corresponding concession. The client should consider very carefully before giving assent.
Q13: What is the legal effect of the agreement?
A13: It is a binding legal contract, enforceable at civil law. Even if a spouse has not issued Circuit or High Court proceedings beforehand, these courts have power to make the agreement a Rule of court. The effect of this is to give the maintenance provision the same status and weight as a Maintenance Order. If the maintaining spouse then fails to pay, the other can issue attachment proceedings or committal proceedings against him/her. Attachment of earnings can only apply where the spouse is employed by another. If s/he is self-employed, the only alternative may be Enforcement proceedings with the threat of committal to prison.
The District Court has no power to make the agreement a rule of court, but if maintenance proceedings have already been issued there, it can note the agreement. While this gives no greater weight to the agreement, it can be useful if further District Court proceedings become necessary.
The agreement does not give the right to remarry. The Separation Agreement can contain a clause to the effect that if the spouses live together again for a stated period, the agreement will become void. No legal action is required to strike it out.
The agreement if it operates successfully can form the basis of a Divorce Application.
Q14: What are the advantages of a separation agreement?
A14: Firstly, it can be drawn up and signed quickly. Secondly, since the Courts need not be involved, it is cheaper. Thirdly, and, most importantly, the spouses decide the terms of their separation rather than have the terms imposed by a court.
Q15: How long does it take to draft an agreement?
A15: Not long, once the decision on the terms are made. As the agreement is legally binding, however, the spouses should ensure that s/he understands everything in it before signing. If anything is unclear, the solicitor should be asked to explain.
Q16. What can a spouse do if the other spouse refuses to sign?
A16. Nothing, as coercion may invalidate the contract. If however, one spouse is in a position to start matrimonial proceedings in court the possibility of such action may persuade the other to consent to a separation Agreement.
Q17: Should the parties to a legal separation agreement use the same solicitor?
A17: It is strongly recommended that the parties should seek separate legal representation. One solicitor will find it difficult if not impossible to reconcile the conflicting interests of two people. The parties may however seek the services of a family mediator to help them agree the terms of the separation. It is then open to each party once the agreement is finalised to seek the independent legal advice of their own solicitor.
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