What is a Separation Agreement and Why Do I Need One?

16 December 2016

A Separation Agreement is a contractual agreement between a married or separated couple or parties to a civil partnership.

Separation Agreements can deal with the maintenance of the parties and for any children of the family, and how a couple intend to share their assets when they separate. Such an agreement will set out their intention to live apart and because this is in writing it is good evidence of the decisions made.

Separation Agreements are usually entered into by couples who are separating but who do not want to divorce or dissolve their civil partnership at that time, perhaps for religious or practical reasons.

Couples facing a relationship breakdown should seriously consider entering into a Separation Agreement as otherwise it will be difficult to prove the terms of any verbal agreement.

What Can a Separation Agreement Include?

A Separation Agreement will be tailored for the two of you for your particular circumstances, so it can cover almost anything you want it to.

The usual things that you might think about when deciding to separate include:

  • Recording the date on which you separated, for tax and other reasons
  • Whether you are going to get a divorce, often it will provide for the divorce/dissolution to proceed after 2-years by agreement
  • What is to happen to the family home? Who is to live there? Will it be sold? How will the mortgage/bills be paid?
  • What is to happen to savings and inheritances?
  • How are you going to deal with debts?
  • Will either of you receive maintenance, and for how long?
  • Arrangements for children: Where they should live, where they should go to school, who they should have contact with, and how their financial needs will be met.
  • When should the agreement be reviewed?

These are just some of the main points to think about.

How Do the Courts Treat Separation Agreements?

In order to make the Separation Agreement as persuasive as possible in any future divorce or dissolution proceedings, you both need to disclose and set out your financial circumstances in full and get expert legal advice on the agreement and its effects.

The terms of a Separation Agreement are usually prepared so that they can be turned into a Final Consent Order if you decide to proceed with a divorce or dissolution, as long as the circumstances have not significantly changed from when the Separation Agreement was made.

Are Separation Agreements Legally Binding?

When deciding how persuasive the agreements are the Courts in England & Wales will usually consider whether there was pressure by one person on the other person to enter into the agreement and whether either person did not take legal advice.

While Separation Agreements are not binding on the Court in the event of a later divorce or dissolution the existence of a Separation Agreement will be one of the factors that the Court considers, and may have a decisive influence on the outcome of either person’s application for a financial remedy.

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