Separation Agreements – How Far Are They Legally Binding?
Last updated on August 15th, 2022 at 09:19 pm
What is a separation agreement?
A separation agreement is a document you make when you want to stop living together as a couple, setting out the arrangements you want to make for things like finances, children and property. You can use one whether you are married or unmarried. If you’re married, you can use a separation agreement to agree the terms of your separation before you finalise arrangements in a divorce. If you’re cohabiting and unmarried, you may also find an agreement like this useful, since common-law partners are not protected by laws in the same way as married couples.
You can read more about the reasons you might want to use a separation agreement, and what they might cover here.
We’ve also covered the different questions about what happens after you’ve made a separation agreement here, such as changing or cancelling it, and how long it should last.
Is a separation agreement legally binding?
Technically, no. Although the separation agreement can be a formal legal document, if it’s drawn up correctly by experienced legal professionals, it isn’t technically legally binding in its own right. A separation agreement is not a court order, and the court is not usually involved in creating it. It is, however, a contract – so it can still be challenged in a court in the same way as any other contract. That’s why it’s important that it is properly written by a family solicitor.
A separation agreement can often be made into a consent order later in the divorce process, by having your solicitor properly draft it and then applying to the court – so making it legally binding.
Does a separation agreement have to be filed anywhere?
No – not unless you want your solicitor to apply to turn it into a consent order. Court proceedings have not usually commenced at this stage, which is why separating couples may opt for a separation agreement until they are ready to make its terms final and binding in a later divorce settlement.
Do I need a separation agreement?
Not everyone needs one, but they can be especially helpful if you’re planning to divorce, or you have children and finances to divide. A separation agreement can be as formal or informal as you choose, but it is a good idea to have a written record of things you have agreed. Separation agreements can also speed up the legal divorce process if you have already decided these arrangements in advance – so saving on your legal costs. If you’re on good terms with your ex, then an informal or unwritten arrangement may work fine for you.
However, we find that this isn’t always guaranteed with separating couples – and relationships can deteriorate, with one partner later changing their mind! That’s why it’s useful to make a formal written agreement with advice from legal professionals.
Do the courts attach significance to separation agreements?
Yes, they can do, if they are properly drawn up with independent legal advice on both sides. The weight they carry in court depends on the contents of the agreement and the circumstances in which they were made, which we discuss more below.
What conditions need to be met for the court to take a separation agreement seriously?
If a separation agreement is entered into voluntarily by both parties, with the benefit of legal advice, full financial disclosure of both parties, and the terms in the agreement are fair and reasonable – then it is unlikely a judge would interfere to change it. It’s important to have the separation agreement drafted by a legal expert so you get it right first time, so take the time to get it right now in case it is later challenged by either party. If you have an existing separation agreement, but later disagree and require the courts to settle the dispute, then there is the chance that a judge may see no reason to vary it when making financial orders and child arrangement orders. You can read more about maintaining or changing separation agreements here.
It’s also vital that any separation agreement conforms to legal conventions – and according to legal standards – in order for it to stand up in court.
For a court to consider upholding a separation agreement as part of divorce proceedings, it would have to fulfill these conditions:
- Both parties took legal advice before entering the agreement.
- Both parties’ circumstances are broadly similar to when the agreement was made.
- Both parties made full and frank financial disclosure.
When might the court not uphold a separation agreement?
The court might not uphold a separation agreement if:
- Either party entered into it with no legal advice.
- Either party’s circumstances have considerably changed since making the agreement, making the original terms unfair.
- Either party did not fully and honestly disclose their financial situation (for example, hiding assets or not declaring an income source).
The court would also be unlikely to uphold any clause preventing either party from going to court to dispute the agreement.
Making a separation agreement legally binding: what’s involved?
To make your separation agreement legally binding, Graysons’ legal experts would recommend this process:
| Step 1: | Agree with your ex-partner what areas your separation agreement will cover, and what the terms will be. It’s ideal if you can reach this kind of agreement amicably between yourselves, but sometimes this isn’t possible. You may have very complex arrangements involving children and business assets, or there may be some conflict involved in the relationship breakdown. In these cases, a solicitor can be useful by providing further information and helping you to work out your issues, alongside legal advice. |
| Step 2: | Your solicitor will draft your separation agreement once terms have been settled upon. It is important that both of you should obtain independent legal advice from separate solicitors on the details of the agreement. Amend and re-negotiate it as necessary until you are both happy with the content. |
| Step 3: | You can then have the separation agreement signed and witnessed. |
| Step 4: | In a later divorce, your solicitor can apply to court for a consent order to mirror the financial terms of the separation agreement and make it legally binding upon you both. You’ll also both need to fill out a statement of information form. |
| Step 6 | If the judge thinks the agreement is fair and reasonable, he or she will approve it and make it legally binding. |
