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Separation Agreements - FAQs

  • rubytuesday
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17 Jun 10 #209581 by rubytuesday
Topic started by rubytuesday
The following FAQs apply only to Scotland

What is a Separation Agreement?

A separation agreement is a document that outlines the divison of assets and child arrangements. the contents are agreed upon by both parties.

All financial arrangements and arrangements for any children must be agreed upon by both parties before any divorce proceedings can begin.

Couples in Scotland will usually legally separate by means of a separation agreement. This is often entered into when the couple initially separate, to regulate their financial affairs and the care arrangements for their children. It's common for the couple to come to an agreement regarding the division of their assets and for payment of financial support for the spouse and children and indeed for the division of assets to take place at, or shortly after, the time they separate. Thereafter, if the parties do come to divorce, the divorce action can proceed on an uncontested basis.

Such separation agreements are normally registered in the Books of Council and Session located in Edinburgh; this can be done simply by writing a letter to the Books of Council and Session with a copy of the signed agreement and asking for it to be registered. There is a fee payable depending on how many pages the agreement extends to and how many copies are required; once registered, the agreement has the same effect as a divorce court decree and can be enforced.

There is only limited scope for changing the terms of a registered agreement. For example, it's possible to vary the arrangements made for the care of the children and to vary the arrangements made for the payment of maintenance for a spouse and/or children if there is a change of circumstances. Otherwise the provisions of the agreement can only be challenged if it can be shown that they were not fair and reasonable at the time they were entered into.

Separation Agreements were previously (and on occasions now) referred to as Minutes of Agreement

Do I need a solicitor to draw up my SA?

It is highly advisable that proper legal advise is sought from a family law solicitor - Separation Agreements can be very complex documents. It is possible for a couple who are in complete agreement over the financial division and child arrangements to draw up their own SA, and you can download SA templates (ie from Lawpack), which are then completed and submitted in the usual manner. However, if you are unsure about any aspect/clause within the self-drafted SA, seek proper legal advice, as there is very limited scope to change any clause after it becomes a legal document.

What if we cant agree?

If negotiation between the 2 parties are proving fruitless, then there are a number of options open;
(1) - negotiation through both parties' solicitors
(2) - collaborative law when both spouses meet with your respective solicitors and work together around the table.
(3) mediation - a mediator would work with both parties to come to an amicable agreement

The final option is having the Courts decide upon the financial split/child contact issues - however this is very costly, both in monetary and stress terms. Only around 3% of divorcing couples in Scotland end up in the courtroom for this.

What should I consider when thinking about a SA?

There are four steps which should be considered before making a decision about the financial arrangements. Please note that matrimonial property is that which is accrued between the date of marriage and the date of separation.

1. Establishing the date of separation on which the married couple cease to cohabit as man and wife.

2. Identifying all the assets owned jointly or individually by a couple at the separation date including the house, furnishings, a car, pensions, savings and investments and any outstanding liabilities (mortgage, car finance, personal loans, credit card debts etc) in existence on the date of separation.

3. Determining any non matrimonial property by looking at the individual assets and seeing the circumstances in which they were acquired. Assets owned by either party before the marriage or those gifted or inherited are not matrimonial property.

4. Valuing matrimonial assets as at the date of separation, for example, by providing statements for savings, asking insurance companies for surrender valuations of endowments and pension providers for the Cash Equivalent Transfer Value. Endowment policies and pensions started before marriage are apportioned for the years of the marriage. It's best to have agreement before having the house valued by a Chartered Surveyor. The liabilities are deducted from the assets to provide the net value of matrimonial property.

Do we have to have a Separation Agreement?

If there are NO outstanding financial matters, assets to be divided or child contact issues, then a signed and witnessed affidavit stating this will be suffice for the Court.

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