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About this separation agreement
Before we tell you about this document, please note that a separation agreement is not binding in law in the same way that a commercial contract would be. A judge can still change the terms, whether your agreement is based on our template or is written for you by your attorney. We explain in more detail further down this page.
When a relationship ends and partners go their own ways, there can be a great deal of uncertainty as to who will pay previously joint bills, how possessions and assets will be split, and who will look after the children.
For married couples, a separation agreement like this one (sometimes called a deed of separation) provides certainty as to how each person will live while a divorce is being settled.
It is also suitable for:
- couples who are separating having not married, and for
- couples looking to end a civil partnership or same sex union.
This separation agreement provides both parties with a degree of protection and certainty in what would otherwise be a very uncertain time.
Why use this separation agreement
There are a number of reasons to use a written deed of separation:
- Prevent future arguments
A separation agreement is a written record of what you agreed between yourselves. After signing the document, it is more difficult for one person to argue that he or she did not agree to something.
- Save time and money on attorneys
Attorneys can be good negotiators and can offer good advice on entitlements, but there is nothing in a separation agreement that requires legal knowledge or an attorney. This document achieves much the same as an attorney would do for you after a few meetings. Unless you want an attorney for another reason, you can save time and money by completing this document yourself instead of asking him or her to do it for you at a high hourly cost.
- It could form the basis of a consent order in divorce
If you can demonstrate that the agreement has worked well for a period of time, a judge could let it form the basis of a consent order in divorce proceedings.
- Keep the relationship amicable
Court proceedings inevitably become acrimonious. There is a much greater chance of keeping your future relationship friendly (and agreeing a split that suits both parties, keeping joint friends and making access to children easier) if you can work out together the details of the separation before you reach a court. A deed of separation can make divorce process easier, faster and less stressful because many of the difficult things have been agreed already.
The law on separation agreements
A separation agreement is not binding in the same way as a commercial contract. The Court still has a complete discretion to make an order in different terms to any previous agreement. However, when or if you do have to go to court, it is likely that the judge will make an order (which will be binding of course) in the terms of your agreement provided:
- the agreement is fair;
- you both worked on the agreement without pressure and entered into it freely;
- it covers all your assets after full disclosure.
The extent to which a judge will stay with the agreement reflects the level of his acceptance of the above three points.
If one of you is in breach of the deed of separation and the other goes to court to enforce it, the judge will make an assessment as described above and will enforce the agreement to the extent that he feels is right.
Note: children arrangements have no legal standing at all. The court will take no account of what you have agreed but will start afresh in considering the interest of each child. Of course, if a satisfactory arrangement is in place, it is likely that he will order that the arrangement should remain undisturbed. It is always worth making arrangements for your children because it is bound to be in their interests to have a secure and firm framework for their lives.
Completing your separation agreement
The agreement is straightforward and easy to complete. You don't need to involve an attorney or go to court.
This deed of separation provides for detailed disclosure, but we do not try to anticipate every asset you may have. You must be very thorough in your disclosure.
Next, you should discuss what you want from the separation. You may need to instruct experts (such as an accountant and/or a surveyor) to value financial and physical joint assets.
This template provides for you to set down your exact arrangements for your children. Although not binding on the Court, your agreement together will reduce the risk of future disagreement, as will all other aspects of your lives.
Separation agreement contents
The document includes paragraphs that cover:
- Details of the parties, including the separation date
- Details of any children, if applicable
- Arrangements for the disposal of the house by sale, or
- An option for one party to keep the matrimonial home and be bought out by the other
- Payment of outgoings such as bills and other expenses – who will pay
- Division of other possessions and household property
- Assignment of insurance policies (you may additionally need: Deed of assignment: life insurance policy or endowment policy)
- Division of business property
- Maintenance payments for the spouse and any children
- Lump sum payments
- Conclusion of joint accounts
- Option for the parties to agree to petition for a divorce after two years separation
- Child maintenance arrangements
- Parental rights arrangements
This document was written by an attorney for Net Lawman. It complies with current South African law.
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