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Separation Agreements Explained

April 12, 2022

For different reasons some separating couples don’t want to move straight to a divorce or dissolution and want to have a period of adjustment and reflection. Our expert divorce and separation solicitors understand that ending a marriage or civil partnership is a life changing decision but can also advise on how to protect yourself financially during this time with a separation agreement.

What is a separation agreement?

A separation agreement is a document which sets out the arrangements that both of you have agreed should happen when you stop living together.

Separation agreements can cover property, finances and arrangements for children. A separation agreement can set out the date of separation, the agreement of the parties to live apart, how the assets should be divided, who will remain in the family home, who will be responsible for making payments such as the running costs of the house and whether there should be ongoing financial support in the interim. 

Both parties would have to agree to the terms and the document would be signed by both. Separation agreements are not legally binding although if they are prepared correctly, they are a formal contract that can be challenged in court. If the agreement was entered into freely, the parties had full financial disclosure, legal advice and the agreement is fair to both spouses then the court is likely to find it persuasive if there have not been any major changes to the parties’ circumstances since signing. 

A separation agreement can be turned into a financial consent order once you have reached the conditional order stage although only certain terms can be included within an actual order.

What can I include in a separation agreement?

You and your spouse or civil partner can set out:

  • Family Home – Who will stay in the home? If you are both staying in the home, how will it be divided? How will the mortgage payments be paid? How will the running costs be paid? If the property is to be sold, how will the equity be divided? Can one party buy the other out? If the property is rented when will the tenancy be given up?
  • Debt – Who will be responsible for making which repayments? How will you deal with joint accounts?
  • Assets – How will these be shared between the spouses? Will savings be used to pay off debt? Who will keep which car/large assets or valuable possessions?
  • Financial support – Will one spouse pay the other maintenance to ensure they can meet their needs? How long will this payment be made?
  • Arrangements for children – Where shall the children live and with whom? What amount of time shall they spend with the other parent?
  • Pets – Where shall the dog/cat live and with whom, what time should the other person get to spend with the cat/dog? How should pet insurance, vets bills, grooming costs etc be divided?

Are separation agreements legally binding?

Separation agreements are not legally binding; however, if they are put together correctly, they have the status of a formal contract that can be challenged in a court. 

The court is likely to take a separation agreement into account, and be persuaded by the arrangements contained within it, if:

1. The agreement was entered into willingly by both spouses, 

2 Full financial disclosure was given by both spouses, 

3. Legal advice was sought by each spouse, and 

4. The agreement is fair 

5. There have not been any major changes to the parties’ circumstances since signing.

If it’s not legally binding what’s the point of having a separation agreement?

The separation agreement can make it clear to both spouses what they are each responsible for during any period of separation before a divorce or dissolution is initiated and finalised. The work undertaken in agreeing a separation agreement is not wasted and can be a firm foundation for preparing a later financial consent order although there will have to be some further work involved in preparing a financial consent order. 

Once any consent order is approved by the financial remedies court the agreement contained within it becomes legally binding. However, as a separation agreement is not legally binding it does not prevent either spouse from making an application for a financial order that is different from the agreement reached in the separation agreement, it is however harder for them to justify why there should be deviation from the intention of the separation agreement unless there has been a change in circumstances.

We’ve been living together but aren’t married. Our relationship has ended, can we enter a separation agreement?

Yes, unmarried, cohabiting couples can enter into a separation agreement. The situation is slightly different to that described above as the agreement is not capable of being turned into a financial consent order. It is best to speak to our specialist cohabitation solicitors for individual advice.