What is a Separation Agreement?

Lisa Pepper

Introduction to separation agreements

A separation agreement is a document that can be prepared  when you want to stop living together as a couple, whether you decide to end the marriage or not. It sets out the arrangements you wish to make for things like finances and the family home and can include agreed shared care arrangements for your children.

A separation agreement is a legally written document that sets out the arrangements between you and your partner when you separate. You can create one whether you are married or unmarried.

If you are married or in a civil partnership, a separation agreement allows you to agree the terms of your separation and keep things amicable while you consider whether you wish to  divorce.  It can also be used as an alternative to divorce if your religion or belief forbids you getting divorced or dissolving your civil partnership or perhaps you have other personal reasons why you do not want to divorce but you do want to live separately.

If you are living together and unmarried, a separation agreement can help protect your rights when you break up. Cohabiting couples are not protected by laws in the same way as married couples. A separation agreement can spell out how you and your ex agree shall split your finances and agree your share of the wealth you’ve built together.

When might I need a separation agreement?

A separation agreement is useful if:

• You no longer wish to live with your partner but are not sure about getting divorced yet.
• You are not able to divorce or dissolve your civil partnership, for example, because you have been married/civil partners for less than one year.
• There is a chance of reconciliation and you want some breathing room while you decide what to do.
• You’ve already started divorce proceedings but need to agree important financial matters, such as who stays in the family home, while the divorce is taking place.
• You are not married and want to formalise the arrangements for splitting the  finances and taking care of the children.
• You wish to take the heat out of negotiations arising from the breakdown of the relationship and ensure you both know where you stand.

What should be included in a separation agreement?

A separation agreement can be as short or as detailed as you choose but generally will cover the important details of your split, including:

• Child residency and contact arrangements
• Whether one person will pay child maintenance or spousal maintenance
• Who is responsible for paying the mortgage, rent and household bills
• Who will live in the family home
• What will happen to the proceeds of sale if a property or asset is sold
• How any savings and investments should be split up
• What happens to furniture, cars or or other items you bought jointly

Is a separation agreement legally binding?

A separation agreement is not legally binding in the same way as a Financial Remedy Order.

In the Supreme Court in 2010  in a case called Radmacher v Granatino, the Court ruled: ‘The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement’.

What if my ex ignores the terms of our separation agreement?

If your partner doesn’t stick to the terms of the agreement, there are various steps you can take.

If you are married and going through a divorce, you can apply to the Court to have your separation agreement turned into a financial remedy order. A court is likely to do this as long as the terms are considered by the Judge to be fair.  The Financial Remedy Order is legally binding and will end the possibility of future financial claims (if there is a ‘clean break’ in the order).

In the case of S v S in 2014,  Mr Justice Munby said that:  courts will only interfere with agreements in ‘most exceptional circumstances’ and where there are ‘overwhelmingly strong considerations’.

How long should a separation agreement last for?

That is up to you and your ex.   A solicitor can assist and advise on whether the duration should be open-ended or whether it would be suitable to include an end date (say, where there is maintenance). For example, it is common for the financial arrangements to change or some parts end (such as child maintenance) when the children leave home or reach a certain age.

It is possible to change a separation agreement at any time, if both of you agree to it. It’s a good idea to review the agreement at regular intervals and if either of your circumstances changes.

Can I write a separation agreement myself?

This is not recommended. A court may disregard some or all of your terms that are not considered fair or reasonable. This can sometimes happen when one person has made financial sacrifices that are not realistic, such as agreeing to give up their property or pension rights, or if someone has not been open about their finances or not received legal advice.

There are also some terms that a Judge would never enforce, such as those that are not in the best interests of the children or which prevent a person from applying to the court.

It is always best to take legal advice before signing a separation agreement. Our experienced family solicitors can guide you through the issues and ensure your document stands up in court. They will also be able to advise on any other issues you may need to consider, such as tax implications and inheritance rights. Get in touch today to talk to one of our qualified family law solicitors about how we can help.

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