What is a Separation Agreement and should I get one?

A Separation Agreement is a formal contract between two parties when their marriage or civil partnership has broken down. It lays out what will happen to their joint assets, finances, property etc.

Importantly, it also sets out responsibilities, such as who will pay the mortgage or rent on a property, and any bills whilst you are still legally married or in a civil partnership.

Yes, you can draw up a Separation Agreement if you and your partner are cohabitees and wish to separate.

In such cases, Separation Agreements can be very useful as cohabitees do not have the same rights as married or civilly partnered couples, so finances, assets and property can become complicated if there is not a clear way of dividing who owns what.

Separation Agreements can be drawn up for a variety of different reasons. It may be that a couple is against divorce or civil partnership dissolution for religious reasons and want to be able to separate without going down this path.

Another reason may be that the marriage or civil partnership has not lasted a year and therefore you cannot legally get divorced or dissolve your civil partnership.

For some couples, they may want to spend some time apart to consider whether they want to legally bring an end to their marriage. It can be useful to have a Separation Agreement in place in such circumstances when you are considering divorce but have not yet decided to follow that route.

No. Separation Agreements do not legally end your marriage in the way that divorce or civil partnership dissolution does. It is important to remember that this means you cannot remarry, as you are still married in the eyes of the law.

They are a formal document setting out agreements that you and your partner have made for the duration of your separation.

Some couples may choose to only remain separated and never officially divorce.

Yes. If you and your partner decide down the line that you want to officially end your relationship, you can get divorced. The Separation Agreement can be used in the financial negotiations to help guide a financial settlement, and the consent order.

You do not need to get legal advice. However, it is highly recommended that you discuss the agreement with a lawyer and with a financial advisor if necessary. This is because you are entering into a potentially legally binding agreement. Although the Separation Agreement is not in itself legally enforceable, it can be used in a court of law and is a formal contract.

Getting advice from an expert family lawyer will help matters as they will be able to guide you through the process and highlight key aspects that should not be left out of your Separation Agreement. It is also important that you each get advice separately from different lawyers.

Using a lawyer will mean that the agreement will hold far more weight. Lawyers can also smooth over any difficulties and identify any imbalances in power and finances that may cause your agreement to be invalid.

If you and your spouse are struggling to come to an agreement, you might want to consider mediation as a way to help guide and smooth the process.

If you decide at a later point to go through with divorce or dissolution proceedings, you should seek legal advice again as a lawyer can transfer your Separation Agreement into a draft consent order.