The period between separation and divorce can be a difficult and confusing time. Many couples turn to a separation agreement to help them navigate this time. It can also be used in other circumstances when divorce isn’t an option. Our expert divorce solicitors break down the benefits of one and when to use it.
What is a separation agreement in divorce?
A separation agreement is a written contract made between separating couples, either considering divorce or dissolving a civil partnership, that outlines how they will manage finances, property, debts, and child arrangements while separated.
Whilst not legally binding, it is a formal contract that can be challenged in court if it is drawn up with the input of a family lawyer..
What is included in a separation agreement?
It can cover a range of areas, including:
- Who is responsible for paying the mortgage, rent, or household bills
- How you will deal with any debts
- Which person gets to continue living in the family home
- What happens if the family home is sold
- How savings, investments, inheritance, or other financial assets are handled
- How will any personal property be divided, for example, cars or furniture
- If one party will pay maintenance to support the other or any children
- Child arrangements during the separation, e.g. who the child will live with and levels of access
- It can also make provision for there to be a divorce in the future when both parties are ready
- It can also consider any premarital assets for both parties, or one person, brought into the marriage
- The amount to be paid in spousal maintenance, if applicable
Why would I need a separation agreement?
The period of separation before divorce can be an uncertain time; a separation agreement helps provide clarity with your finances and children. It can be a good first step towards divorce. It helps establish boundaries without legally ending a marriage and can mean you and your ex can have a more amicable divorce.
If you are thinking about whether you should get a divorce or a separation agreement first, there are several key reasons why a couple may need to create a separation agreement, for example:
- You want to separate but don’t want the finality of divorce or a dissolved civil partnership
- You don’t wish to divorce for religious reasons
- You can’t get a divorce or have your civil partnership dissolved because you haven’t been married for 12 months
- You want to trial a separation with financial security
What are the advantages of getting a separation agreement?
There are three main advantages of getting a separation agreement.
First, it gives you time for consideration and the financial stability to think before taking the important decision to divorce.
Second, they provide the legal certainty needed to protect both parties financially as it can be challenging to prove the terms of any verbal agreement.
For example, if your partner refused to honour a verbal agreement, it would be difficult to enforce or take any type of legal action. However, a valid separation agreement, signed by both of you, would be recognised as a contract by most courts.
And thirdly, having a signed agreement in place can help reduce tension, avoid expensive court costs and help resolve issues more efficiently. It can also help speed up the divorce process if arrangements have been agreed in advance, helping to save on your legal costs later.
It also helps couples to understand whether the financial arrangements they have agreed are achievable or meet their financial needs before reaching a final agreement.
Hear from one of our experts
Deepika Bhoolah-Bansal, an Associate at our family law office in Southampton, says:
“While a separation agreement can set out how you intend to separate your matrimonial finances, it does not automatically dismiss your financial claims against each other. Financial claims are the legal rights spouses or civil partners may have to make claims against each other’s income, property, pensions, savings, investments or other assets following separation or divorce.
“If these claims are not formally dismissed, either person may be able to make a financial claim in the future, even after divorce and death, depending on the circumstances. This can create uncertainty and may leave both parties exposed to future claims if, for example, one person’s financial position changes significantly.
“Therefore, if you believe the marriage has broken down irretrievably, it is important to start divorce proceedings and obtain a financial consent order. Once approved by the court, a financial consent order can make your financial arrangements legally binding and, where appropriate, dismiss future financial claims against each other.
“A separation agreement can also deal with day-to-day finances and how matrimonial assets are separated during the period of separation. However, pension sharing orders cannot be made through a separation agreement and can only be dealt with once divorce proceedings are underway and the court approves a financial order.”
Is a separation agreement legally binding?
A separation agreement is not legally binding in the same way as a court order. However, if it has been properly prepared, both parties have taken independent legal advice, and there has been full financial disclosure, the court is likely to give it significant weight.
The terms can also be turned into a financial consent order during divorce proceedings, which becomes legally binding once approved by the court.
It is a contract that can be challenged in a court, provided it has been written correctly by a family lawyer and under certain conditions, including:
- Entered into voluntarily by both parties, with the benefit of legal advice
- Full financial disclosure of both parties
- The terms in the agreement are fair and reasonable
It is therefore very important that you both receive separate and independent legal advice before signing the agreement as it may be needed in evidence should the matter go to court.
A separation agreement can often be made into a consent order later in the divorce process by your solicitor which will then make it legally binding when approved by the court.
Should I get a legal or judicial separation?
While a separation agreement is an informal agreement, a judicial separation is a more formal process. It still does not end the marriage, but it can make orders regarding property, finances and child arrangements the same way it does for a divorce.
If a consent order is not possible, you can apply for a judicial separation which is legally binding.
The main reasons for seeking a judicial separation are:
- Your religion or faith forbids you from getting divorced or dissolving your civil partnership
- You don’t know if you want a divorce or if you want to dissolve your civil partnership and you need time and space
- You have been married or in a civil partnership for less than a year
- Because you are still legally married, there are certain legal rights you would maintain
As this does not legally end a marriage or civil partnership, this means neither party can remarry or enter a new civil partnership.
Do I need a solicitor to get a separation agreement?
If you and your partner are struggling to agree, the assistance of a family lawyer can help with the negotiation process.
They can carefully assess the terms within the agreement to determine whether or not you are both being represented accurately and justly.
There may be important factors that you had not considered which your lawyer will be able to point out and help avoid expensive conflicts in the future.
Once the terms have been settled, a solicitor will draft the agreement and negotiate with the other party’s solicitor until the content is agreed.
Each party must have independent legal advice from separate solicitors on the details of the agreement.
What happens if I’ve got a separation agreement and then get divorced?
If you and your partner subsequently agree to a divorce, then provided that the separation agreement has been drawn up correctly and is reasonable, a court will be unlikely to interfere with it.
For a separation agreement to be upheld as part of the divorce proceedings, it would have to fulfil these conditions:
- Both parties took legal advice before entering the agreement.
- Both parties’ circumstances are similar to when the agreement was made.
- Both parties made full and frank financial disclosure.
The terms of your separation agreement can be transferred into a financial consent order by your lawyer.
Your separation agreement will be appended to the order and will be endorsed by the Court.
Get in touch
If you wish to make a separation agreement or you would like further advice, please do contact our Client Services Team to speak to one of our specialist lawyers.
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Originally written May 2021
Friends going to divorce. Wife has flat which she rents out to cover her mortgage on it. She bought it before the marriage and husband thinks he cannot claim half share. I think he can- judge awarded 50/50 on everything, but husband has not mentioned the flat.
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