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What is a Separation Agreement?  

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The family law department here at McCarthy + Co is frequently approached by couples who have agreed to separate and have questions regarding the process. Here we answer some of the most common questions we are asked about separation agreements.

What is a separation agreement?

A separation agreement is a legally binding document created between two spouses at the time of their separation. It outlines the terms of their separation, detailing arrangements such as division of assets, debts, spousal support, child custody, and visitation rights. This agreement serves to formalise the decisions made by the couple regarding their post-separation life, providing clarity and legal structure to their new relationship status. It’s typically used to avoid disputes and to provide a clear framework for the future, particularly in cases where a divorce might follow. You can find out more about how we assist our clients with legally binding separation agreements here.

How do I ensure my separation agreement is legal?

Separation agreements are not court orders so it’s important to keep in mind that they can be challenged. However, to ensure that they are taken seriously by a court you will need to have your agreement drafted or reviewed by an experienced family law solicitor. The agreement should be entered into voluntarily by both parties, with each having had the benefit of legal advice. Full financial disclosure from both parties is essential, and the terms of the agreement must be fair and reasonable. If a dispute arises and courts are involved, they are less likely to alter the agreement if these conditions are met. Moreover, the agreement must conform to legal standards to be enforceable in court. The parties’ circumstances at the time of divorce proceedings should closely match those when the agreement was made.

Is it possible to void a separation agreement?

Yes, there are some circumstances where it may be possible to void your agreement. For example, if it’s found that the agreement was signed under duress, fraud, or coercion. If the agreement was entered into without legal counsel and is found to be grossly unfair to one party, it may also be voided.

Under what circumstances can separation agreements be modified?

They can be modified under circumstances such as significant changes in either party’s financial situation, changes in the needs or circumstances of children involved, or mutual agreement by both parties to alter certain terms. Additionally, if the original agreement was based on incorrect or incomplete information, or if there has been a substantial change in circumstances since the agreement was made, a modification may be possible. A qualified family law solicitor will be able to assist you with this process.

Do I even need a separation agreement?

Whether you need a separation agreement depends on your circumstances, but it’s often beneficial, particularly if you’re contemplating divorce or have children and financial assets to address. A separation agreement provides a clear, written record of mutually agreed terms. Formalising these decisions can streamline the divorce process, potentially reducing legal expenses by pre-arranging key matters. While an informal or unwritten arrangement might suffice if you’re amicable with your ex, it’s not always reliable as relationships can change. To safeguard against future disagreements, consider a formal written agreement, ideally prepared with legal advice. This approach offers more certainty and protection should circumstances evolve.

Can I enter into a separation agreement without a solicitor?

Yes, you can create and sign an agreement using a document you have found on the web but without the involvement of a solicitor you are at high risk of it not being taken seriously by a court should a dispute arise in the future. It’s prudent to seek legal assistance to formalise this type of arrangement.

Require assistance with your separation agreement?

If you are considering entering into a separation agreement with your spouse, the family law team at McCarthy + Co will be happy to assist you with any further questions you may have. Arrange a consultation with us using our confidential online form and a member of our team will be in touch to schedule a time for your appointment.

Clíodhna O'Regan

Born and raised in Clonakilty, Clíodhna O’Regan is an Associate Solicitor specialising in conveyancing, with a particular interest in commercial conveyancing. She also specialises in family law. She has been an integral part of McCarthy + Co. for six years since she returned West in January 2017, after gaining experience as a conveyancing and probate solicitor in Cork city.

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