Separation Agreements: What are they and When to Use One?
When you’re separating, a separation agreement can be a good option for many couples to consider. This separation agreement, also called a deed of separation or separation deed, sets out how a couple will divide their assets and responsibilities. It can make for a more amicable separation and provides more legal security than no agreement at all.
A separation agreement is available for both married and unmarried couples. We will look at the difference between married and co-habiting couples below.
In essence a separation agreement is a contract drawn up between two parties to explain their intensions with dividing up property, assets and ongoing finances at the end of their relationship. Read our ultimate guide below to find out more and how they can help with your separation.
When Is a Separation Agreement needed?
There are many scenarios where it can be beneficial. For example, if you’ve been living with a partner for a while, it is probably the case that you’ve been sharing many things, such as the home you live in, a car, a joint savings account, or more
You’ve also been sharing responsibilities, such as bill payments, mortgage or rent payments, and parental responsibilities if you have children together. It’s also possible you’ve made plans to share things in the future, su ch as potential income or responsibilities such as the cost of schooling your children.
A separation agreement will formally address what is going to be done about these shared assets and responsibilities, and it will also determine the steps that must be taken in the process, such as selling your property to split the revenue, among other arrangements.
Is a separation legally binding?
In essence, a separation is not a legally binding document. In family law, you need to either have a consent order (for finances on divorce) or a child arrangements order (for parenting on divorce or separation) to have a legally binding document that has been approved or decided by the court. However a separation agreement does invite the court to accept your agreement and, where certain factors we list below are undertaken, they will accept your agreement. In effect, you are more legally protected with the separation agreement than without one, as long as you have had it produced in the correct way.
When You Can Use a Separation Agreement?
Scenario 1: You’re Married and You’re Separating
If you’re married but you don’t want a divorce or are not able to begin the legal proceedings, separating and using a separation agreement is a good option for you because it can work as an alternative to, or as a precursor to, getting a divorce.
In England and Wales, you can’t apply for a divorce unless you’ve been married for at least one year. Even when you can apply for divorce, you still need to prove at least one of the established grounds for divorce, (until the new no-fault divorce law comes into effect). These grounds include:
- Unreasonable behavior
- Partner desertion
- You’ve been living apart for at least 2 years if you’ve agreed on divorcing
- You’ve been living apart for at least 5 years if one of you hasn’t agreed to divorce
If you can’t prove any of these grounds for divorce, a separation agreement will allow you to separate and divide your assets fairly. Another advantage about such an agreement is that it allows for the possibility of reconciliation. Some people do not want to divorce on religious grounds, or are in or nearing retirement and want to remain married to keep certain pension rights or health and insurance benefits. It is a good idea to get a more formal separation agreement in such circumstances if you are remaining married.
However, when reconciliation is not possible and you decide to continue with the divorce, the separation agreement will provide proof of the date of separation and you can use it to show the court your intentions when you separated and later invite them to accept it as a legally binding consent order.
It is important to note, the court can disagree with what you decided in the separation agreement or overturn it entirely because it’s not legally binding under family law. But in most cases, the court will uphold the agreement if it’s deemed fair to everyone, including the children of the marriage, and if nothing has substantially changed since it was issued that would make it inappropriate.
Having access to good legal advice and a solicitor drafted separation agreement will also make it more likely that the court will accept your separation agreement.
Scenario 2: You’re Not Married but You’re Separating
Couples who are not married can also benefit from a separation agreement, to split the assets and responsibilities fairly. For example, if you have a fixed-term tenancy together, the agreement can help you determine how to split the remaining rent you owe.
The separation agreement in such cases forms a contract but it is not legally binding under family law. To enforce it you would have to go through the civil court, rather than family courts.
The separation can lay out how you are going to divide up any joint assets you have and if there are any ongoing future payments agreed, how they will work.
Even when the separation is friendly, it can be important to have a separation agreement. Personal and financial circumstances can change unexpectedly; people move on and find new partners, or their financial requirements change, so it’s a good idea to formalise the separation to prevent any conflict or misunderstanding in the future.
What’s Included in a Separation Agreement?
The first thing that’s outlined in a separation agreement is the relationship background, which includes your names, how long you have been living together, and if there are any children – whether of the relationship or outside of it. The agreement will also include the actual date of separation.
If the agreement is going to be taken seriously the judiciary, it needs to clearly state the basic principles under which it’s being made. You should acknowledge that the document is a reflection of your intentions and there are 3 basic principles that allow the separation agreement to be upheld in court. These are:
- You’re entering the agreement of your own free will. This means no one should be forced or feel pressured to agree to the terms, otherwise, it wouldn’t be an agreement.
- Both parties need to make a full financial disclosure of their assets and responsibilities. This is essential to a fair agreement.
- This is the full and final agreement. Both parties agree that the separation agreement includes everything that’s relevant and they won’t be making any further claims once it’s done.
A separation agreement can also include some clauses that allow for variations in case the circumstances change. These clauses deal with what should be done in the case of death of either party, breach of agreement, re-marriage or co-habitation by either part or other relevant change, such as a change in income.
Lists of Assets and Responsibilities
In the interest of a full financial disclosure, the separation agreement may also include lists and/or schedules detailing every single asset and responsibility. This will include relevant information such as the value of the assets and other details. The lists will be used as references in the sections that are relevant. For co-habiting couples it would usually only show those assets that are jointly owned.
One of the many important factors that are outlined by the separation agreement is what should be done about the property you’ve been sharing together. Sometimes it maybe necessary to sell the home or flat and split the proceeds according to what the agreement states.
Alternatively, one of the parties may pay out the other party so they can have sole possession of the home or flat. Another option is to wait until the children are of age to sell the property. The agreement also determines how the expenses associated with the sale will be split. There are 10 options on how to deal with a property on divorce or separation, which are listed in this blog here.
Personal effects are also outlined in the separation agreement, so it’s determined who keeps what and how much time the parties have to collect those items. The parties also agree to take care of the personal effects until the relevant party can collect them
Financial assets are addressed by the separation agreement as well and it includes actual and potential assets and businesses. The agreement will determine how much money will have to be transferred so each party can have sole ownership of the assets. When it comes to a business, the leaving party can agree to break from the business and give up all titles, contacts, intellectual property, and more. Pensions are treated differently depending on whether you were married or not. You should take legal advice on what assets are to be counted as part of your divorce or separation.
Both parties have equal responsibility when it comes to paying off joint debts, so you’re equally liable. When couples separate, one party may be able to pay off their debt more easily, so it’s always a good idea to determine how joint debts can be addressed. This can be done in full, in installments, or you can agree to have one party pay more than the other if that’s possible. Any debts between you can also be included here.
The separation agreement can also determine the maintenance payments that one of the parties will receive to provide for any children. The payments can be a lump sum or they can be periodic. A clause can also be included to allow for the inflation of living costs. Child Maintenance payments can be included but the enforcement of these would fall under the Child Maintenance Service.
This section of the separation agreement ensures that the parties involved will do their best to make sure they maintain the best possible relationship with their children. It will also determine the time that each partner will spend with the children. In many cases it is recommended to draft a parenting plan to sit alongside, or as an appendix to your separation agreement
Lump Sum Payment
This section allows the parties to determine if there’s going to be a lump sum payment made to either partner. It will also state the amount, the deadline, and the separation agreement will acknowledge that this will be the final payment.
Provision for Divorce
Finally, the provision for divorce states that both parties agree that the separation agreement is being made as a precursor to divorce. It also states that the agreement will serve as a basis for the divorce settlement. This is only for married couples.
How can I enforce a separation agreement?
This will depend on whether you are married or were co-habiting. To enforce a separation if you are married you would normally apply to the court for a financial order, using a Form A.
If you were not married you can apply to enforce the order through the small claims court initially, as it would fall under civil law (as a contract) and not family law.
Does a separation agreement mean we cannot divorce on grounds of adultery?
No, even if you have been living separately for many years, you can still commit adultery under family law whilst you remain married. It might not be the best ground to use for a divorce in such a circumstances.
Are child arrangements covered in a separation agreement
They can be included as an appendix to the agreement, but they are not legally binding. The only way to have a legally binding parenting agreement is to apply for a child arrangements order. This can be done by consent if you both agree. Many parents draw up a parenting plan which they use as the basis on how to raise their children whilst living separately. You need to complete a Form C100 for a child arrangements order.
We have a shared pet. Can that go into our agreement?
You can lay out the arrangements for any family pet in your separation agreement and include who will pay for the insurance, vet bills and other expenses. And of course, the agreed arrangements for you both to care for them in the future
How can we agree on the contents of the separation agreement?
You can try the following steps to reach an agreement:
- Work together to finalise your agreement. If you are able to reach an agreement, you should both take independent legal advice on the agreement reached as this will help if there are issues later down the line.
- Use Divorce Negotiation. If you have an agreement in principle, you can have it sense checked by a divorce negotiator and then have a solicitor to draft your separation agreement at a fixed fee.
- You can reach an agreement through family mediation. The mediator will take you through a tired and trusted process to help you reach an agreement. Any agreement reached can be drafted into a separation agreement by our solicitor for a fixed fee.
- You can ask for an independent barrister review if you are struggling to agree between yourselves
- You can ask your solicitors to negotiate on your behalf
- You can go to arbitration or court
Can we write our own separation agreement?
In theory, yes, you can write your own separation agreement. However, if there is any dispute in the future, the court are less likely to accept your separation agreement. It is therefore worth investing in a family law solicitor to draft your separation agreement for you. It could save you a lot in legal fees at a later date.
How long does a separation agreement last for?
The agreement does not expire, although you would usually replace it with a consent order if you are married and you subsequently get divorced. This would also allow you to get a clean break when agreed.
Do we have to involve the court for our separation agreement?
No, you do not need to file the agreement at court. You will usually both sign and have the signature witnessed. You then keep a copy each and the drafting solicitor or mediation service may also retain a copy for a few years. The court will only become involved is there is a subsequent dispute with the agreement or if you get later divorced and request a consent order
Can we stay legally separated but married forever?
Yes, you could do that. You run the risk that you are tied together under family law and the longer you are married the more your finances can be considered marital assets. You also need to consider that the longer the time since you created the separation agreement, the more likely your circumstances are to change and therefore the less likely the court is going to uphold the original agreement. For example, your children may have moved on or you may have been taken ill or had a business fail.
What is the difference between a separation agreement and a legal separation?
A separation agreement lays out your financial arrangements as agreed on your separation. A legal separation is also called a judicial separation. It is something you can apply to the courts to formalise your separation when you are unable to divorce on religious grounds or where you have been married for less than a year so cannot ask for a divorce. You should take legal advice on the implications of a legal separation and they are rarely seen as most couples just choose to start living separately without formalising it. You can apply for a legal separation on a form D8. There are court fees of £365 to file the application.
Can I download a free separation agreement template?
Yes, there are various resources on the internet or templates you can download for a small fee. You should weigh up the costs of this method against the prospect of going to court in the future if there is any disagreement. We always recommend a solicitor drafted separation agreement and taking independent legal advice on that agreement.
My ex does not want to sign a separation agreement. Is there anything I can do?
You cannot force someone to sign a separation agreement and if they did so it would make it difficult for a court to uphold what was in the agreement. If you cannot agree, then you can try family mediation to resolve the issue.
Otherwise, if you are married you can start the divorce process and apply for a financial order. If contested, this can get very expensive and you will normally need to show the court you have at least considered family mediation by way of a MIAM.
If you are not married and separating and your ex does not want to sign a separation agreement, there is not much you can do to force it through You can apply to court under the Trust of Land and Appointment of Trustees Act 1996 – often referred to as TOLATA. In some cases you can apply for support for the children under Schedule One of the Children Act 1991. But we always recommend taking good legal advice prior to exploring either of these options.
Top tips to make your separation agreement stand up at court
Make a full and frank financial disclosure
Make sure you are both in full agreement and not pressurised into signing
Both of you should take independent legal advice
Use a family law solicitor to draft your agreement
Make sure you have the agreement signed and witnessed
Use a family mediator if you need help reaching an agreement
Separating can be stressful and challenging, but a separation agreement can help you do so with more confidence on what will happen for your future.
If you are sure that the marriage is not recoverable, then a consent order as part of a divorce will give you more legal certainty – but if you do not wish to divorce at this time, or were not ever married, a separation agreement will be the best option to draw up a contract on what you have agreed.
It should always be done properly to avoid future legal costs and stress.