Separation agreements

1. What is a separation agreement?

If you’re married or in a civil partnership and you decide to separate from your spouse, you can enter into a separation agreement to agree on how your money, property and responsibilities will be divided after you separate.

A separation agreement is usually chosen by couples who want to delay their divorce or dissolution of civil partnership for practical or religious reasons. It is a contractual agreement outlining your decision to live apart, your ongoing obligations, how your assets will be distributed and any arrangements for your children.

As it’s in writing, a separation agreement is good evidence of the decisions made between you and your spouse for future reference.

2. Why should I have a separation agreement?

You should opt for a separation agreement if you are not yet ready to divorce or dissolve your civil partnership, you want to consider the future of your marriage, or if you are separating amicably and no divorce or dissolution is needed.

When separating from your spouse, it may seem straightforward and amicable at the time but it’s possible that your circumstances could change. A separation agreement is the best way to ensure you both adhere to the terms outlined.

A lack of agreement means that, in the future, your partner may be able to make financial claims against you for the following:

• Assets owned solely by you before your marriage or civil partnership
• Assets gifted to you as an individual as part of inheritance
• Any wealth earned following your separation

3. Is a separation agreement legally binding?

A separation agreement is not technically legally binding. However, if it is written up properly and you have both had legal advice, it will be difficult for one party to argue in court that they don’t have to stick to the terms.

The court can change the arrangements laid out in the separation agreement if it becomes clear that:

• • the arrangements were biased towards one party
  • one party was not given the opportunity to seek independent legal advice
  • the full extent of one spouse’s/civil partner’s assets were not disclosed
  • there was a substantial unforeseen change in circumstances

You can ask a family law solicitor to draw up a separation agreement for you and it will carry the same weight as any contract, which can always be challenged in court.

You can find out more about how far separation agreements are legally binding here.

4. What can separation agreements cover?

The terms of a separation agreement vary depending on individual cases. However, the key elements that can be covered include:

Property

If you’ve been married, in a civil partnership or cohabiting for a number of years, it is likely that you have either purchased property together or you’re renting a property that you both live in. A separation agreement can specify:

• • • what should happen to the house now and in the future, for example, whether it should be sold or if one of you (and your children) should have exclusive rights to live in the house until a future sale
    • what each of you will get by way of a share of the proceeds on a future sale of the property
    • what should happen to your intended share of the property should either of you die before a sale
    • how you will split your other assets and possessions now you are not living together anymore

Finances

A separation agreement can include decisions about payment of:

• • • • loans, credit cards and hire purchase agreements
      • mortgage or rent
      • utility bills such as council tax, gas, electricity, water rates, buildings and contents insurance, TV licence etc.
      • property and maintenance repairs
      • school and medical fees
      • whether one spouse/civil partner should pay maintenance to the other

Children

You can make arrangements for the future care of your children by agreeing:

• • • • • who they’ll live with/shared care
        • where they’ll live
        • how often they’ll spend time with the other parent
        • holidays
        • which parent will claim the child benefit and child tax credit
        • how much child maintenance should be paid from one parent to the other

5. Can I file for divorce/dissolution without a separation agreement?

If you wish to divorce or dissolve your civil partnership, you do not have to have a separation agreement. However, many couples decide to separate first and come to an amicable agreement before going through a divorce/dissolution and court proceedings.

If you and your partner are struggling to come to a mutual agreement, a divorce/dissolution may be the best option.

6. Are separation agreements available for cohabiting couples?

Cohabiting couples are not treated in the same way by law as married couples or those in a civil partnership when deciding to separate. If you are cohabiting and you decide to separate, by default, you will both be able to keep your own property or your share of any jointly owned property.

As a cohabiting couple, you can still draw up a separation agreement as it’s a useful way to decide on how to split your assets.

This will allow you and your partner to mutually agree the terms, helping to reduce any misunderstanding or unfairness in the future.

7. Do you need a lawyer for separation agreements?

You do not have to take legal advice when putting a separation agreement in place but it’s a good idea to do so.

There are a number of reasons for seeking legal advice:

• • • • • It makes your separation agreement more likely to be upheld in court
        • You can seek advice around any reasons you should not sign your separation agreement

If you have already decided on what should be included in your separation agreement, you should both ask independent family law experts to check through it and turn it into a legal document. You cannot use the same solicitor as this will mean the agreement cannot be considered in court as part of your divorce/dissolution.

8. What are the benefits of a separation agreement?

Divorce/dissolution proceedings can be long and drawn out but a separation agreement can be entered into quickly. The court process can also be confrontational and cause disagreements between you and your partner, which can make the divorce/dissolution process even harder.

If you’re getting divorced or dissolving your civil partnership, you might think a separation agreement isn’t necessary but it can, in fact, make the whole process run more smoothly.

Separation agreements have the following benefits:

Time to decide whether you really want to split

If you’re looking to leave your marriage or civil partnership, divorce/dissolution can seem like the only option. However, a separation agreement can provide a less permanent solution which allows you and your spouse/civil partner to live separately while remaining married. This gives you the time and space to decide whether a divorce/dissolution is what you both really want.

An alternative if you can’t divorce/dissolve your civil partnership yet

You might not be able to divorce/dissolve a civil partnership as a result of religious beliefs that do not agree with the concept. A separation agreement gives you the opportunity to live separately without compromising the beliefs of your religion.

On the other hand, if you have been married or in a civil partnership for less than a year, you are unable to get a divorce or dissolution. If you feel that the relationship cannot be reconciled, a separation agreement will allow you to split your responsibilities and assets until divorce/dissolution proceedings can be started.

Make separation easier for children

Separation and divorce/dissolution is difficult for children, leading to many changes, so it’s important to put their needs first. To protect children from living in a house amidst constantly arguing parents, a divorce/dissolution is often the only option, but the legal battle and disputes can be extremely disruptive. Signing a separation agreement allows you and your spouse/civil partner to negotiate the details of looking after your children without stressful court hearings.

9. What should a separation agreement include?

Separation agreements are individual to each couple and their personal circumstances so will cover a wide range of elements.

A checklist for a separation agreement should include the following:

• • • • • • The date of separation
          • Your intentions around whether you will be getting a divorce/dissolution
          • What will happen to your family home? Who will live there? Will you sell it? How will you continue to pay the bills and mortgage?
          • How will savings and inheritance be divided?
          • How will your debts be dealt with?
          • Maintenance payments
          • Arrangements for your children
          • Will the arrangement be reviewed in the future?

10. What will happen to the estate of a separated couple if a party dies?

If you or your spouse/civil partner dies, you are separated, and you do not have a will that states otherwise, your spouse/civil partner will inherit your estate. If you have no will, the rules of intestacy will apply, so your spouse/civil partner will still inherit much of your estate.

11. Can a separation agreement be overturned?

Once you have signed a separation agreement, it is very difficult for either of you to overturn it or make changes at a later date unless you are both in agreement about the changes. It is unlikely that the court will interfere with the terms of this type of agreement.

12. What happens if your spouse/civil partner refuses to sign the separation agreement?

If you can’t agree on the terms of a separation agreement, it may not be the best option for you. However, before going through divorce/dissolution proceedings, you should try mediation, as this may help you come to an agreement regarding your finances, property and children.

13. How do you end a separation agreement?

When you draw up your separation agreement you will usually set an end date, or you can mutually agree to end it voluntarily.

If you and your partner have remained separated for two years and are happy with the terms of the separation, the agreement can be the basis for your divorce or dissolution of civil partnership, if you wish to proceed. It can be considered a draft proposal for the order that must be submitted to the court upon divorce/dissolution.

If one or both of you break the agreement, this is the same as breaking a contract. This means that the person who breaks the agreement may be expected to pay damages to the other.

14. What can Graysons do to help?

Our family law experts have dealt with many separation agreements and can draft a document tailored to your individual needs. Understanding your needs correctly in the first place helps us to ensure that you get an agreement that you are both happy with and thus more likely to stick to in the future.

We make sure that we use the latest precedents, structure and wording approved and favoured by the courts, which means courts are more likely to uphold the separation agreement.

15. How much will a separation agreement cost?

We can offer a fixed-fee service for your separation agreement. The actual fee will depend on the specific details of your instruction.

Contact our family law solicitors now to discuss your individual needs or to make an appointment for a confidential meeting.