If a married couple can agree on the terms on which they will live separately without recourse to the courts and a document known as a separation agreement may be drawn up and executed by the parties. The agreement is a legally binding contract setting out each parties rights and obligations to each other. A fundamental provision of every separation agreement is an agreement that the parties will live apart and the main issues dealt with in a separation agreement are as follows:
- Maintenance - Maintenance to be paid by one spouse to another can be set out in a clause contained in the agreement. The amount will usually have been agreed in prior negotiations. Reference should be made to the duration of time during which maintenance is to be paid and how the maintenance is to be paid. It is also usual to include a clause in relation to variation of maintenance in the future.
- Property - All matrimonial property may be dealt with in the separation agreement. Frequently it is agreed between the parties that one of them will remain in the family home until such time as the children reach the age of eighteen whereupon the family home will be sold and the proceeds distributed in an agreed manner.
- Succession - The parties may renounce their respective rights, under the Succession Act 1965, to a share in the estate of the other by the inclusion of a clause to this effect in the agreement. It should be noted that any such renouncation will not prevent a spouse from making an application to the court to have provision made out of the estate of a deceased spouse pursuant to the Family Law Divorce Act 1996, s18(1)
- Pensions - There is no provision in a separation agreement for agreeing an adjustment to a pension scheme of which either of the spouses is a member. If a pension adjustment order is required an application may be made on consent for an ancillary order pursuant to a decree of judicial separation.
- Taxation - Where maintenance is being paid by one spouse to another the issue of income tax should be dealt with in the separation agreement. Separated spouses may elect for joint assessment provided they are resident in the state for income tax purposes and also provided that legally enforceable maintenance payments are being made by one spouse to the other.
- Indemnification - An indemnification clause seeks to have the effect of indemnifying both spouses from all future debts which are incurred by either of them.
- Guardianship & Custody of Children - Where there are children of the marriage under the age of eighteen years arrangements regarding the guardianship, custody and access to the children must be detailed in the deed of separation.