The Ultimate Guide to a Separation Agreement

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.

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.

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 ca'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:

• Adultery
• 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 has'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.

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:

1. 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.
2. Both parties need to make a full financial disclosure of their assets and responsibilities. This is essential to a fair agreement.
3. 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.

This will depend on whether you are married or 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.

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 circumstances.

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.

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.

Read more about this in our blog - Who Keeps the pet in a divorce or Separation?

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

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.

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.

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

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.

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.

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.

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.