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Making a separation agreement

Why make a separation agreement?

A separation agreement is an agreement that says that you and your spouse or partner have decided to live apart. You don’t have to have a separation agreement, but it can be a useful record of the decisions the two of you make when you separate – for example, on:

  • arrangements for care of children (see the chapter “Parents, guardians and caregivers”)
  • how you’ll divide up your property
  • any agreement for maintenance (financial support) by one of you for the other or for the children.

Family Proceedings Act 1980, s 39(3)

The agreement usually includes the date on which you agreed to separate. If the two of you are married or in a civil union and you later decide to apply for a divorce (“dissolution”), you can use the separation agreement as evidence that you’ve lived apart for the necessary two years. See “Divorce: “Getting a Dissolution” Order” in this chapter

How do we make a separation agreement?

Property (Relationships) Act 1976, ss 21A, 21F

You can write up your own separation agreement. But if your agreement is going to deal with relationship property, it has to follow the form required by the Property (Relationships) Act:

  • it has to be in writing and signed by each of you, and
  • each of you must have had independent legal advice, and
  • each of your signatures must be witnessed by a lawyer, and
  • the lawyer who witnesses your signature has to certify that they explained to you about the effect and implications of the agreement.

Family Court Act 1980, s 15(c)

Note: You can register your separation agreement with the Family Court, as a “Consent Order”. This means that if anything goes wrong, it can be enforced in the same way as a court order.

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