Deed of Separation

Here are some things you should know about how a Deed of Separation works:

What is a Deed of Separation?

• When a husband and wife are preparing for the possibility of a Divorce and they are (or will be) separated (i.e. living in separate households), a document known as a Deed of Separation may be prepared to help them set out the key facts and terms which they have both willingly agreed to in relation to the breakdown of their marriage and how their Ancillary Matters (e.g. maintenance, division of matrimonial assets, children) will be dealt with in the event that the parties obtains a Divorce, such as the following:
  • The relationship / marriage has irretrievably broken down
  • The commencement / start date of the separation (i.e. the date on which the parties first separated or began to live in separate households)
  • How the ongoing separation will take place and be managed in relation to the following:
    • The parties’ living and financial arrangements
    • The children’s’ living, access and financial arrangements
  • How much maintenance will be paid to the wife and children
  • How the couple’s matrimonial assets and properties will be divided
  • How the couple’s debts will be paid
  • How the couple’s children will be cared for (e.g. Custody, Care and Control, Access)
  • Whether either party may obtain a Divorce through uncontested Divorce Proceedings and Ancillary Proceedings when the 3 years’ or 4 years’ separation period has been completed
• A Deed of Separation can provide for the terms to be revised and renegotiated (e.g. if there is a material change in the parties’ circumstances)
  • This also helps to ensure that the terms of the Deed of Separation remain relevant and pragmatic and are capable of being complied with over time

Will the Deed of Separation be recognised by the Court?

• A Deed of Separation is an agreement can be legally binding on the parties and recognised by the Court
• In deciding how much weight will be given to the Deed of Separation during Divorce Proceedings, the Court will consider whether or not:
  • Whether the parties had willingly entered into the Deed / agreement (i.e. without duress, undue influence)
  • Whether the parties fully understood the terms of the Deed / agreement (i.e. without mistake, misrepresentation or fraud)
  • Whether the terms and arrangements contained in the Deed / agreement are fair and reasonable to the parties (i.e. not biased, unfair)

What are some of the benefits of having a Deed of Separation?

• As the parties may be separating for some time before a Divorce is actually obtained, a Deed of Separation helps to set clear rules as to how the couple’s living and financial arrangements during the ongoing separation will be managed
  • This helps to reduce potential issues of dispute from arising and minimise the likelihood of disagreements between the parties during the ongoing separation
  • By doing so, the Deed of Separation can help to reduce the likelihood of unhappiness or ill feeling between the parties when they later start Divorce Proceedings
• The Deed of Separation also helps to clarify and confirm when 3 years’ or 4 years’ of separation will start and finish so that the parties may proceed to rely on the separation as a grounds for the Divorce at the appropriate time
• Although the parties may need to spend time and effort on reaching an agreement in the Deed of Separation as to how the Ancillary Matters will be dealt with (even before Divorce Proceedings are even started), this may ultimately help save time and costs because the Deed of Separation can be used to clearly set out that the terms of the Divorce and exactly how the Ancillary Matters will be dealt with
  • For example, the Deed of Separation may state that the parties agree that either one of them may obtain an uncontested Divorce after the relevant separation period has been completed
  • In addition, the Deed of Separation may set out exactly how all the Ancillary Matters (e.g. maintenance, division of matrimonial assets, children) will be dealt with and this would eliminate the need or likelihood of contested Ancillary Proceedings