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Comprehensive and effective separation agreement suitable for a couple (whether in a partnership, separated or just living together) who wish to record the agreement that they have reached in relation to their living arrangements, finances, children and joint assets and liabilities.

√ Attorney approved √ Practical points considered

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.

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.

It is also suitable for:

• couples who are separating having not married, and for
• couples looking to end a 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.

• 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.

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. Also consider a proper parenting plan.

The document includes paragraphs that cover:

• Details of the parties, including the separation date
• Details of any children, if applicable
• Dealing with immovable property
• possessions and household property
• Maintenance payments for the spouse and any children
• Lump sum payments
• Conclusion of joint accounts

Draftsman

This document was written for Agreements.org by a Senior Attorney (Admitted in the High Court) with more than 18 years’ experience. It complies with current South African law.