How to enter into a formal separation agreement

Introduction

If you and/or your spouse or partner decide to separate, you can enter into a separation agreement. Married couples or civil union partners may also decide to apply for a separation order from the Family Court (see How to obtain a separation order).

Counselling through the Family Court

A couple intending to separate has access to free, confidential counselling through the Family Court. You should contact the Family Court Co-ordinator at your nearest Family Court. The counselling is available whether you are married, in a civil union, or in a de facto relationship.

If the break-up of the relationship has already come before the Family Court in some way – for example, if you’ve applied for a parenting order for day-to-day care of the children – the court will encourage you and your spouse or partner to attend counselling to attempt to reach some agreement on important issues. Any decisions reached can be formalised in a separation agreement.

Is the agreement legally binding?

A separation agreement is a legally enforceable contract, except that –

• to the extent that the agreement deals with relationship property issues, there are procedural requirements it must satisfy in order to be legally valid (see below "Requirements for separation agreements dealing with relationship property"
• to the extent that it deals with care arrangements for children, the agreement does not give legal rights that could be enforced in the courts. In making decisions about care arrangements, the court will be concerned only with what is in the best interests of the children. See further How to apply for a parenting order for day-to-day care (custody) of a child and How to apply for a parenting order to get contact (access) with your children.

A separation agreement may be oral or in writing.

You may wish to register your agreement with the Family Court, in which case it becomes enforceable in the same way as a court order and not merely as a legal contract.

The agreement will also provide good evidence of the fact that a separation has taken place for the purposes of an application for a dissolution of the marriage or civil union (see How to obtain a dissolution of marriage or civil union).

What issues might be dealt with in the agreement?

Strictly speaking a separation agreement is one whereby a couple agree to live apart, but it could also provide for –

• the maintenance of one spouse or partner by the other
• arrangements for day-to-day care of or contact with children of the relationship
• financial arrangements for expenses
• who will live in the couple’s home
• how the relationship property will be divided

Requirements for separation agreements dealing with relationship property

If the agreement deals with the division of relationship property, it will, if it’s valid, override the provisions of the PROPERTY (RELATIONSHIPS) ACT 1976. However, to be valid the agreement must satisfy certain strict requirements:

• The agreement must be in writing.
• It must be signed by both parties.
• Each of you must have received independent legal advice.
• Each party’s signature must be witnessed by a solicitor, who must certify that the effect and implications of the agreement were explained to the signing party.

For more information, see How to: The division of property when a marriage, civil union or de facto relationship ends and How to enter into a property agreement.

Cautionary notes

• While it is not essential to enter into a separation agreement, it is advisable to do so to clarify the parties’ positions and thereby to avoid future misunderstandings. The terms of the agreement should be drafted carefully and be specific to your particular situation.
• Before entering into any separation agreement both parties should receive independent legal advice.
• If you separate from your spouse or partner you should get legal advice about the effect this will have on your property or assets and whether it is necessary to draw up a new will.