Our separation agreement template comprehensively covers all the areas you need to consider if you and your husband, wife or partner have decided to go separate ways and live apart. It is suitable for married couples and for de-facto partners.
By agreeing now how you will divide your financial assets and liabilities you will have more certainty about the future and be able to move on faster in your own life.
It covers both financial separation (the division of jointly owned assets and periodic payments after separation) and physical separation (living arrangements and those for care of children).
- Length:16 pages (2550 words)
- Available in:Microsoft Word DOCXApple PagesRTF
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Why make a separation agreement?
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 personal possessions and assets will be split, and who will look after the children.
A separation agreement like this one provides certainty as to how each person will live after a separation and possibly while a divorce is being settled.
When a marriage or a partnership breaks down, reaching an amicable arrangement quickly about the division of assets and debts can reduce stress enormously.
Avoid additional stress and worry
Even if you break up amicably, your life changes enormously. You can gain some certainty - or at least reduce uncertainty - by sorting out early on how possessions and property are to be divided, what each person has sole responsibility for, and continuing joint obligations.
You have confidence in what you've agreed because a separation agreement is a legally binding agreement.
Prevent future arguments
Recording what you agree in a written contract provides evidence in any later dispute of what you intended to happen when you split up. Once your ex has signed a formal agreement, it is more difficult for them to argue that they did not agree to something.
It could form the basis of your divorce decree
If you can demonstrate that the agreement has worked well for a period of time, a judge is very likely to let it form the basis of your order in divorce proceedings or in your dissolution of your civil partnership.
Keep the relationship amicable
Court proceedings during divorce 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 family court.
Having written a separation agreement can make the divorce process easier, faster and less stressful because many of the difficult things have been agreed already.
Are separation agreements legally binding?
In Australia, separation agreements are a type of binding financial agreement. They are legally enforceable if they are made correctly. If your ex-partner does not comply with your agreement, for example, by not paying alimony or child support that you have agreed, you can ask a court to enforce the agreement.
The law that applies in Australia is the Family Law Act 1975. This states that to be binding:
- the separation agreement must be in written form and signed by both parties; and
- both parties must have obtained independent legal advice from a solicitor and have given the other a copy of the certificate of advice.
The role of the solicitor
For your agreement to be binding, you must both have taken legal advice from independent lawyers before signing the agreement. When giving independent professional advice, these lawyers should tell you your legal rights if you don't make an agreement and tell you how your agreement changes those rights. They may also advise you on how you could improve your position after separation.
The reason for the requirement for a lawyer to provide legal advice is that a consultation ensures that each of you is aware of the implications of the agreement, and is not being coerced or pressured into signing to particular terms. It removes the risk that the other of you later makes a claim that the agreement is not valid.
But while you do need a solicitor to give you a certificate confirming that you have been given the required legal advice, there is no requirement to ask that solicitor to write your separation agreement.
While a solicitor will be able to advise you on what you may be entitled to under law, there is nothing in this type of document that requires legal knowledge to make it.
You can save time and money by completing this separation agreement template yourself instead of asking a solicitor to do it for you at a high hourly cost. You may be able to find a fixed-price legal advice component.
Who can use a separation agreement?
The Family Law Act 1975 and subsequent law allows married couples, those in a civil partnership and those in a 'de facto' relationship (whether of the opposite sex or the same sex) to make a separation agreement.
The meaning of 'de facto' couple is two people that live together on a genuine domestic basis even though they are not legally married.
If you are married (or in a civil partnership), then you can be said to be separated if:
- your life together or living together has been brought to an end by the action or conduct of one only of the parties; or
- you live separately and apart, even if you both continue to reside in the same residence or that one of you renders some household services to the other.
The meaning of 'living separately and apart' is that you reside without any intention to reconcile or resume a marital relationship. For example, you might have the intention to divorce at some later time. Note that living separate and apart is a ground for divorce.
Note that you can live together but still be separated. There can be many reasons why a separated couple might continue living in the same household. You may need some time to find a new home, or you might not be able to afford to live on your own. Your children might need time to come to terms with your separation.
Arrangements for care and access to children
A court has a duty to consider the needs of children over any arrangement that you agree on. A judge should start afresh in considering the interest of each child.
Of course, if a satisfactory child arrangements are already in place (which may include any of child maintenance payments, child custody and visitation schedules) it is likely that the judge 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. However, you should not expect that these arrangements might not be later changed.
This separation agreement 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. If possible, your arrangements for child support should go further than simply day to day child custody and child maintenance payments.
If you can show the court how you and your ex will provide for all needs of your minor children, your arrangements are more likely to be accepted.
Completing this separation agreement template yourself
The process for completing a separation agreement should be as follows.
First, you should discuss at a high level what you both want before starting divorce or dissolution proceedings. You may have already separated from each other. One spouse is likely to have different reasons for wanting a certain split to the other.
Next, you should each draw up a list of personal property and joint marital assets. This binding financial agreement provides for detailed disclosure of your financial circumstances, but we have no way of knowing every category of thing you might own. We suggest that you consider carefully what other assets you might have and make sure they are accounted for in an accurate disclosure.
Fair property division is the key issue that most couples find hardest to agree on. You leave yourself open to claims that the division was unfair if you don't make a full disclosure.
You may need to instruct experts (such as an accountant and/or a surveyor) to value financial and physical joint assets (such as your marital home and investment properties) if you can't agree on a fair price yourselves.
As well as division of assets, you also need to consider division of liabilities: joint debts, such as your mortgage, overdrafts and credit cards.
After assets and liabilities, think about income and expenses. After separation, will both of you have sufficient money for a reasonable lifestyle. Should one of you pay spousal maintenance or child support to the other? If one of you stays in the family home and it remains owned by both, should the one who doesn't live there pay expenses relating to its maintenance?
You may also want to consider how to deal with the loss of intangible benefits of marriage, such as tax benefits or joint life insurance provided as an employee benefit to one of you.
Lastly, consider your childrens' needs. How will you share child custody? What arrangements will you make for transferring the children between you? Will one of you pay child support to the other?
Next, draft a written agreement, making sure that each of you discloses fully your assets, liabilities, income and expenses.
Each of you should take the agreement to a different law firm for the required independent legal advice. They may also advise on changes. If you want these changes, be prepared to negotiate with the other party for them.
When both spouses finally sign and date the completed agreement (which doesn't need to be done in the presence of each other), it becomes a legally binding contract.
Should you look to economise by using free separation agreement template?
If you are considering writing your agreement yourselves, the saving you make by using a free separation agreement instead of a paid one is minimal compared to saving you make by not paying the high cost of legal fees for a separation agreement prepared by a firm of solicitors.
A good solicitor is likely to charge several thousand dollars for advice and preparation of an agreement. Your ex partner is also likely to face similar costs for their law firm to review your lawyer's draft.
A free sample separation agreement can be very useful to help prompt you as to what you need to agree. However, it needs to cover all the points relevant to you, which free versions often do not.
We regularly review what is available to ensure that our template covers everything all others do.
Contents of our separation agreement template
The separation agreement template 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
- Spousal support and maintenance payments for 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
You can view a sample agreement by clicking on the image of the separation agreement above.