What is a Separation Agreement?

A separation agreement, or a deed of separation as it is also known, is a written agreement made between parties when their relationship or marriage breaks down.  It can be used to record how their joint assets and responsibilities will be divided between them and set out the arrangements for any children of the family to spend time with them, once they are living separately and apart from each other.

A separation agreement is usually made in the following circumstances:

• Where parties have not yet decided to divorce but want to live apart.
• Where parties do not wish to divorce each other for religious reasons.
• For parties who cannot yet divorce – they have not been married for twelve months or they wish to divorce each other after two years of separation with each other’s consent.

In these circumstances, having a separation agreement in place can provide parties with a sense of security in knowing that their agreements in relation to finances and arrangements for children have been formalised legally.  This provides greater legal protection as opposed to a verbal agreement.

What can be recorded in a separation agreement?

The parties decide on what they want to include in the separation agreement, but common provisions include the following:

• Divorce proceedings – when they will be issued, the basis of the divorce, who will be the petitioner and how the costs will be paid.
• Family home:
  • If the property is going to be sold, when the sale will take place and how the proceeds will be divided between the parties.
  • If the parties wish to retain joint ownership until a later date when the property will be sold, who will remain living there and how the mortgage and bills will be paid.
  • If the property is going to be transferred to one party, will the other party receive a lump sum payment for their share of the equity and when this will be paid to them.
• Savings and investments – whether parties wish to retain their own resources or share them, and if so in what ratio.
• Liabilities – whether one party will assume responsibility for these or whether they will be shared between them, and if so, in what ratio.
• Maintenance – whether one party will receive maintenance from the other party to help them meet their income needs, and if so, how will the amount be calculated and how long will the maintenance be paid for.
• Personal property – how the contents and belongings from the family home will be shared between the parties after they separate.
• Arrangements for children:
  • How the children will divide their time between the parties during school term time and holidays.
  • If maintenance is payable by one party for the benefit of the children, how much it will amount to and when it will be paid (monthly, weekly, in advance or arrears)
  • Provision may also be made to cover additional expenses, including school trips and holiday clubs.

Is a separation agreement legally binding on the parties?

Although a separation agreement is not legally binding in the same way as a financial court order made in divorce proceedings, provided the parties comply with certain requirements, it would be considered as a legally persuasive document.

Consequently, if the following requirements were met when making the separation agreement, it would prove difficult for a court to set it aside if one party tried to resile from the agreement:

• Each party must obtain independent legal advice on the terms of the agreement.
• Parties must share full and frank financial disclosure with each other.
• The terms of the agreement must be fair and reasonable.

What happens if the parties to a separation agreement decide to divorce each other?

Parties who previously entered into a separation agreement, who are happy to keep the same terms in relation to their financial settlement, can instruct solicitors to convert their separation agreement into a financial court order, known as a financial consent order.  Subject to the court’s approval, the financial consent order becomes legally binding upon the parties.  The court is likely to approve of the financial consent order if the requirements set out above were met when the separation agreement was made and provided that the parties’ circumstances have not significantly changed since then.

A financial consent order is an important part of divorce proceedings, as without this, any financial claims arising from the marriage will stay open, leaving both parties financially vulnerable, even once a divorce has been granted. By contrast a simple consent order will protect you both from any financial claims in the future.

Should you wish to discuss a making a separation agreement with one of our lawyers, we offer an initial consultation for up to one hour at a fixed fee of £50.00 inclusive of VAT.  For more information or to book an initial consultation, please contact 01444 472700 or email [email protected].