Why and when to use a separation agreement?

Article reference: UK-IA-FAM29
| 4 min read

This article tells you about the reasons and circumstances in which you might use a separation agreement.

It doesn't matter whether you are married or in a civil partnership, or unmarried. Separation agreements can be used regardless of marital status.

Contents

What is separation agreement?

Reasons to make a separation agreement

Circumstances when you should use a separation agreement

 

What is a separation agreement?

A separation agreement is a contract between separating couples that defines how their joint assets and responsibilities will be divided between them. The ex-partners themselves decide on the arrangements on an amicable basis, rather than resorting to court action.

Separation agreements can be used by married or unmarried couples, and are often used instead of following divorce proceedings.

In legal separation such as a divorce, the court makes (or approves a draft) order that cannot be changed without approval in further court proceedings. A court order is legally enforceable - breaking the terms is contempt of court, which is a crime.

Separation agreements, however, are private contracts. They are also legally enforceable, albeit in a different way to a court order. If a separation agreement is broken, the injured party can seek damages in a civil court and it is up to the person in breach of contract to prove either that there was no breach, or that the agreement (or a term within it) was invalid.

Reasons to make a separation agreement

Making a separation agreement helps you both with the process of splitting up.

If you've been living together with a partner for some time, you are bound to have been sharing a whole host of things which make up normal life. A home, a car and a joint savings account might be the barest bones... and you've probably shared responsibilities too – financial outgoings such as bills, credit cards and mortgage payments, and parental responsibilities. You are also likely to have plans for sharing things which have not yet come into being – potential income from pensions and pay-outs, or the cost of schooling your children.

A separation agreement aims to address what will be done with these jointly-held interests, to set out any steps that need to be taken in the near future (for example remortgaging the family home in order for one of you to take out some equity while leaving a roof over the other family members' heads) and to formalise new arrangements including maintenance payments and parental access to children.

Drawing up an agreement is an opportunity for both partners to decide what is fair and to mutually acknowledge this decision. This can go a long way towards avoiding misunderstandings and confusion later on.

So why would you use an agreement instead of formal divorce proceedings if you've been married?

Circumstances when you should use a separation agreement

If you are married and are separating...

You may wish to enter into a separation agreement as an alternative or precursor to divorce, either because you don't want to divorce or because you cannot yet begin legal proceedings.

In England and Wales you must be married for at least a year before you can apply for divorce. After this time you must prove at least one of the following grounds for divorce:

  • adultery
  • unreasonable behaviour
  • your partner deserted you at least two years ago
  • you've lived apart for at least two years if you both agree to the divorce
  • you've lived apart for at least five years if one of you doesn’t agree to the divorce

If you can't satisfy these legal requirements for divorce, making a separation agreement is a way of settling how you divide your assets and responsibilities.

Using a separation agreement has the advantage of leaving open the possibility of reconciliation, and there is no need to take the matter to court.

If the separation then progresses to divorce, the agreement can be used as proof of the date of the separation and form the basis for the court's decisions on how assets and responsibilities will be divided.

The court has discretionary power to make a legally binding financial order on a different basis to the separation agreement. However the court is likely to adopt the agreement provided it is fair to each spouse and to any children of the marriage, there has been full financial disclosure and there has been no change of circumstance to render it inappropriate.

If you are not married and are separating...

Unmarried couples may also find a separation agreement a useful way of dealing with the issue of splitting jointly-held assets and responsibilities. For example a co-habiting couple may want to formally agree on how to split the remaining rent owed on a fixed-term tenancy.

Common-law partners are not protected by the law in the same way as married couples. Particularly, they lack the same rights on divorce.

If you are not married you might find separation decisions difficult precisely because there was no formal marriage nor the opportunity for agreement on joint assets and responsibilities. The way in which you share joint interests may have evolved over time in an undefined way. Making a separation agreement will give you the opportunity to decide what is fair for each party and mutually agree on that decision, reducing the chance of misunderstanding or unfairness.

Even if you are separating amicably, remember that personal and financial circumstances can change - people find new partners and develop different financial requirements - it's a good idea to avoid doubt and conflict further down the line by formalising the separation with an agreement.

Do you need a solicitor to write or approve your separation agreement?

As with any private contract, there is no requirement to ask a solicitor to write or approve your agreement.

A family solicitor can give useful advice on what to include within your agreement, or how to structure it so that it might be accepted at a later date as the basis for a consent order in divorce.

If you are worried that your ex partner might not honour the agreement, you might also take independent legal advice from family law solicitors on how to reduce this risk, perhaps by changing the structure of the deal.

If you later want to use your separation agreement as the basis for your consent order in your divorce settlement, if you also both took independent legal advice at the time you wrote your separation agreement, the court will be more likely to use your separation agreement as the basis for the order.

However, it is important to note that independent legal advice can be taken later as well. It is expensive and if your split is amicable, it might not provide much additional value.

Further information and useful documents

We have another article that might be of interest on what to include in your agreement.

We also have a large range of articles on divorce and separation that cover legal and emotional issues when breaking up.

If you are interested in using a separation agreement, see our comprehensive version here.

Please note that the information provided on this page:

  • Does not provide a complete or authoritative statement of the law;
  • Does not constitute legal advice by Net Lawman;
  • Does not create a contractual relationship;
  • Does not form part of any other advice, whether paid or free.
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