A Guide to a Separation Agreement

When you are signing a Separation Agreement, the purpose of the Agreement is to fix the date of separation, to provide for what arrangements are going to be put in place for your family and their finances and provide for how parties can move on by way of divorce.

  1. Children’s Clauses

It is an option to enter in an Agreement as to whether you acknowledge that you both share parental rights and responsibilities for any child of the marriage and that you will co-operate with each other regarding your children’s arrangements.  This is what is expected of you by the Scottish Court System.  If you are not able to reach agreement on these points then a Sheriff will adjudicate the position.  You need to be aware that he or she may make a decision which is not suitable to either of you or your children.  A Court cannot order parties to be reasonable or flexible with each other so you may end up with a Court Order which does not suit your family circumstances.  The Courts, whilst they cannot order you to do so, expect you to attend mediation or other parenting sessions to put these arrangements in place.

  1. Maintenance

Your Separation Agreement may contain a clause for child maintenance.  You need to be aware that at present this is handled by the Child Maintenance Service.  Whilst there is some scope for the Courts involvement you need to be aware that the Courts will not normally become involved in negotiating the weekly aliment payments for a child.  This does not affect a parent’s claim for a capital sum balancing payment if they have the main care of the children. 

  1. Legal Advice

Your Separation Agreement will contain a clause which says you have obtained independent and or separate legal advice.  The reason for this is that on occasions parties sign these Agreements and may then change their mind some months down the line.  Sometimes they do so by saying that they didn’t have an opportunity to take legal advice.  If the Agreement provides that an opportunity to take legal advice has been taken this reduces the risk of the Agreement being challenged at a later date.

  1. Fair and reasonable

Your Agreement will contain a clause that says that the terms are fair and reasonable.  This is because some parties may change their mind at a later date and seek to challenge the Agreement.  Declaring that it is fair and reasonable at the time it was entered into protects parties from a later challenge to the Agreement.

  1. Final Settlement

Your Agreement will contain a clause that you renounce any further rights that you have to claim a capital sum, property order or financial allowances. This means that this is an underlined full and final settlement agreement.  It means that at the time of signing you do not expect to be returning either to Court or through your Solicitors to seek further financial provision.  The Agreement will usually also contain a clause that it lasts beyond the date of divorce.  This is so that parties can proceed to divorce but may not have finalised all of their financial and property issues, for example some parties may have a post-divorce pension claim that can only be dealt with after the divorce has been granted.

  1. Rights on Inheritance

Your Agreement will contain a clause that says that parties give up their jus relicti and jus relictae. These are your automatic rights to inherit from each other by virtue of the fact that you are married or are in a civil partnership.  These rights will fall away on the signature of the Agreement and this clause takes immediate effect.  Your Agreement will usually contain a clause that provides that parties will sign all necessary deeds to give effect to the Agreement.  In Agreements which contain clauses regarding transfer of Property Orders you may also find a clause which indicates that the Sheriff Clerk can be appointed.  This is a fall back provision in case parties subsequently refuse to implement the terms of the Agreement. 

  1. Moving towards Divorce

Your Agreement will provide a clause as to how your Divorce is to be dealt with.  The standard clause in an Agreement is that at the end of one year parties will be able to divorce on consent.  At the end of two years parties will be able to divorce without consent and that neither party will seek the expenses from the other.  Dependent upon your individual circumstances the provisions of the standard clause may be departed from.

  1. Why registration

The last standard clause in your Agreement is a consent to registration. The purpose of this clause is so that the Agreement can be registered at the Registers of Scotland in Edinburgh.  This preserves the Agreement should the original signed Agreement be lost an extract can always be obtained from Edinburgh.  You should also be aware that Registration for Preservation and Execution means that this Agreement has the same force and effect as a Court Judgement.  Failure to implement the Agreement carries the equivalent ability for the other party to enforce the Agreement as if they had a Judgement from the Court.

We hope this guide is of some assistance to you but if you have any questions arising please do not hesitate to contact us.  If you have any ideas as to how it could  be further clarified we would be pleased to hear from you.

Herd Law Practice.  19 January 2017.

Note: This is advice which is general in nature and is not tailored to your particular circumstances.  This is intended to be a helpful guide to the format of Separation Agreement and is not bespoke legal advice.  Your Solicitor will advise you of any matters arising out of the Agreement that pertain to your particular circumstances.

Tel: 01856 870787

Tel: 01595 690115

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