Importance of separation agreement

Separation:
When a couple who have been living together as husband and wife decide to separate, their parting may have no legal consequences, except when they have established some form of partnership which is then to be disbanded. For a married couple with no hope of reconciliation, however there are many legal implications.

Separation occurs when a couple chooses to no longer reside as a married couple. Therefore finances, assets, and debts are divided among the two, and they can begin living separate lives Moreover, couples also talk about and agree upon custody. When couples legally separate marriage is not dissolved and therefore is not considered a divorce. Issues related to marriage, divorce and separation are regulated by state laws.

Is the agreement legally binding?
Under South Africa law, if a person married, unmarried or divorced. If he/she wishes to separate from partner before instituting divorce proceedings the separation has no legal status.


Divorce and separation –Overview
A divorce formally dissolves a legal marriage. While married couples do not possess a constitutional or legal right to divorce, states permit divorces because to do so best serves public policy.

Legal Separation-Definition
Legal separation is a legal process by which a married couple may formalize a de facto separation while remaining legally married. A legal separation is granted in the form of a court order, which can be in the form of a legally-binding consent decree. The most common reason for filing with courts for a legal separation is to make interim financial arrangements for the two of them, such as deciding which one will pay which bills, possess which property, and whether one of them shall pay the other temporary financial support.

What for
A separation agreement allows a husband and wife to agree on all of the same issues that would need to be decided upon divorce, including maintenance or alimony, division of marital property, child custody and child support.

The legal and financial effects
When a husband and wife separate by private agreement or by deed of separation, their legal rights and obligations change. However, since the marriage has not been ended, they still bound by their marriage vows and may therefore not marry anyone else. If one of them does commit adultery, the other may use this to support an application for divorce. This party will also have the right to sue the co- respondent for damages, although these are likely to be slight in view of the fact that the parties are living apart and the consortium has already come to an end.

Maintenance payments are dealt with ultimately only by the Supreme Court. If separation is by agreement court proceeding will have to be instituted if either partner wishes to change the provisions for the children without the other's consent.


Married couple
A married couple, who decide they can no longer live together but, because of their religious convictions cannot divorce, may separate informally or by some form of deed of separation.
Until the promulgation of the the Divorce act1979, a couple could obtain a decree of judicial separation in only two ways:
By informal agreement
By a deed of separation, preferably one which is drawn up by an attorney or notary


Property Arrangements
The terms of a formal deed of separation cannot be made binding on creditors of the couple, unless a creditor knows the terms in advance. Therefore, if a couple married in community of property subsequently separate, their creditors can still recover payment for debts from both parties to the same extent as if they had not entered into a deed. This holds true even if the couple have divided up their possessions and the debt concerns property that has been taken by only one of them.


What the agreement includes:
• For most spouses the agreement include these issues
• Who the children should live with and how decisions about the care and control of the children will be made (custody and guardianship)
• How the spouses will share the children's time (access)
• Whether a spouse will cover the children's financial need (child support)
• Whether a spouse is entitled to financial help meeting his or her expenses, and if so, who should provide that help and in what amount (spousal support)
• How the assets will be shared and how debts will be paid (property division)
If parties can manage to settle these issues they should consider getting a separate agreement for two reasons.

First, they are legal contracts that can be enforced by the court
Second, it's much cheaper and often quicker to resolve these issues by agreement than in court.
The care and control of children
There are many different types of parenting arrangements that can be agreed to in an agreement. Party settle the issue of with whom children will live, share responsibility of looking after children, visiting rights.

The family home
An agreement can also say whether one spouse will get to keep the family home or whether it will be sold. Even if the house is in one spouse's name, the other spouse is almost always entitled to a share in it.

Other assets
When a couple separates, each spouse has a right to a share in all the family assets. A separation deed can cover how to divide these assets.

Debts
Does the spouse who gets the use of the house have to pay the mortgage? Who pays the credit card bills? Should both spouses be responsible for all of the debts or just some of the debts? These issues can also be covered.

Family business
If parties run family business together they probably won't want to be business partners any longer. It is important to resolve all of the financial issues relating to business in the agreement.

Essential features:
• Legal definition
• Legal status
• Benefits
• Issues to settle for
• Child custody
• Finances
• Assets and property

Reason to buy from Net Lawman:
The partnership agreement from Net Lawman provides you a comprehensive range of agreements that save your time and can be amended accordingly as and when required.

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How you can discharge from an old contract to a new one in a legal way?

Alteration, amendment and discharge of contracts and agreements in business are common practice. Unfortunately, majority of business populaces ignore the legal aspects of discharge of contracts. What exactly is a legal way to discharge or substitute an existing contract into a new one? Simply through "Novation"

What is Novation? Novation is one of a rare legal concept through which one party transfers all its obligations, rights, services and debts under a contract to a third party, with the consent of his original counter-party.

When Novation takes place? Novation takes place when:
• A new contract is substituted with an existing one between the same parties or
• A contract between two parties is rescinded in consideration of a new contract being entered into on the same terms between one of the parties and a third party

When to use this novation agreement? This document can be used to transfer any service contract to another party. There are, of course, many uses for this agreement. Examples of when this document might be used include:
• On the sale/purchase of a business that depends on the continuation of certain services (e.g. website hosting)
• On the sale of an asset in the process of being produced or amended All this should be done through an attorney as it is purely a legal affair

What law says about novation agreement? The law requires four elements to create a novation agreement:
• There must be a valid and legally enforceable original contract • Agreement between all parties, old and new, to the novation agreement
• Release of the parties to the original contract from all duties
• And creation of a valid and legally enforceable new contract. If an agreement does not have these four elements, it might be a valid contract but it will not constitute a novation.

Requirements of a novation agreement:
• The novation agreement is totally a new contract; therefore it must meet all of the requirements of a contract law. The parties must mutually agree to the contract, and each party must offer some form of consideration in exchange for the other parties' promises.
• A novation contract cannot relate to illegal subject matter (for instance, assignment of a crime) and each party may raise any one of a number of contract defenses to prove that it should not have to perform its duties under the novation contract.

Requirements to discharge a contract through novation:
• An agreement by all of the parties to a new contract
• An express discharge of the old contract
• New contractors are bond to perform and follow the terms, rules, conditions and convents of the new contarct
• Performance of all of the terms by all of the parties
• Performance of all of the terms by only one of the parties
• Obligations are also discharged by novation, where, for example, a stipulation is taken from Titius for what you owe to Seius.

With the intervention of a new person, a new obligation is created; the earlier obligation is merged with the later and extinguished. Net lawman offers such comprehensive and exact legal aid in "discharge or substitute of old agreement to a new one" or in issues where you find ways to discharge a contract in a legal way. The legal documents of Net lawman encompass and are applicable for almost all type of issues which comes under novation agreement. These documents cover all possible rights of both old and new parties. For more details about novation agreement, don't forget to read the deeds of novation agreement, assignment agreement and other clauses from Net Lawman.

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Similarities and differences between a substituted contract and a novation

Substituted contract and novation

A substituted contract is when two or more parties in a joint venture find the existing contract or agreement irrelevant or ineffective and replace it with another or new agreement with the consent of all parties involved. If the original or previous agreement is in written form then the substituted contract will also be in written form as well. It can also be identified as a contract variation agreement in which the whole contract is not changed but certain amendments are made to fulfil different requirements.

On the other hand, deed of novation is basically an agreement according to which a new or third party replaces one or more original or existing partners under the old contract and releases the original party from all duties and obligations. The important thing in the novation is that the original agreement remains in effect. The deed of novation becomes quite important to sign while doing any sort of business in South Africa where the existing partner or partners want to transfer their obligation or duties to a third partner. This transfer deed is also called deed of assignment contract.

Legal aspect of Substituted and novation agreements
In South Africa, the South African Companies Act, 1973 caters all business related issues including all sorts of business partnerships. In order to avoid any dispute during the course of any partnership business, the substituted and novation contracts play a vital role as they help the partners to make change in contract or to leave a business by allowing the new party to overtake it.


Differences between Substituted and novation agreements
The similarities between substituted contract and innovations are that both involve a change in the partnership but the nature of change is different as in substituted contract it is the change of the agreement but in novation it is the change of parties or partners.

Here are also some of the major difference between a substituted agreement and novation.
• Substituted agreement requires change in the whole contract while novation agreement generally remains the same.
• Substituted contract remains among the existing partners while novation agreements are usually come into existence when a new or third party involves in an existing joint venture.
• Substituted contract involves the satisfaction of all existing parties with the new replaced agreement whereas in novation the new partner takes over the existing partner's duties and obligations without changing the agreement.
• Substituted contract sticks around all parties whereas in novation the new partner releases the existing partner or parties from their duties.

Net Lawman provides the most relevant and authentic substituted and novation contract templates which are compiled in plain English and are designed in a way to fulfill the requirements of people who just need to do small editing to mould it according to their needs.

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