Separation Agreements in Scotland

A Separation Agreement, if prepared and signed correctly, is a legally binding document.  It can be prepared for married couples as well as cohabiting couples and civil partners.

A Separation Agreement will primarily outline how the various assets and liabilities are to be divided and who will be responsible for payment of any joint bills. It is common for such an agreement to also include reference to the agreed care arrangements for any children of the relationship.  It can also stipulate any financial arrangements for the children, such as the amount of child maintenance to be paid and who will be responsible for payment of any school fees.

Once the agreement has been signed by both parties, then they can normally apply for a straightforward divorce if they are married or dissolution if they are in a civil partnership once they have been separated for one or two years.

One of the benefits of entering into a Separation Agreement is that it gives the couple control over the terms of the settlement, unlike applying to the court, where there is no guarantee of the outcome.

Another benefit is that it is a much cheaper way than applying to the court.

Also, once it is signed, the Separation Agreement will normally represent a full and final legal settlement, which means that neither party can come back at a later date and ask for more money than they received under the agreement.  As such, it provides people with certainty, allowing them to move on with their lives after separation.

If you have only agreed some matters, we can prepare an interim Separation Agreement for you. This can be useful, for example, if you have reached an agreement to sell a family home, but have not yet reached an agreement on the division of the sale proceeds, or an overall division of your assets. An interim agreement can deal with getting the house on the market for sale – which helps avoid unnecessary delays.

A separation agreement is a legally binding contract and if it is prepared correctly and then registered, it will normally have the same effect as a court order (with some exceptions, such as any orders relating to the care arrangements for any children, which cannot be enforced by the court). However, although once a couple have signed a Separation Agreement they will generally have severed all ties with one another, they will still remain married.  The Separation Agreement does not grant them a divorce.  A divorce will extinguish any inheritance rights on the death of the other spouse.  A Separation Agreement might cover this eventuality but it is something that would need to be specifically covered in the Separation Agreement otherwise a separated spouse might be able to make a claim on the estate of the other if they die.

One party will still need to initiate divorce proceedings, either using the ordinary procedure or, if applicable, using the simplified divorce procedure.  However, if all financial and childcare matters have been resolved, the court will simply need to be asked to grant the divorce at that stage.