What is a separation agreement and why do I need one?

What is a separation agreement?

A separation agreement is a document created by a couple who have decided to live apart. Both parties must voluntarily agree to the terms in the agreement as it sets out the practicalities of their separation, including:

• division of assets,
• how debts will be handled
• childcare arrangements
• spousal support

These agreements can be used by married couples before their divorce is finalised, and by unmarried couples who co-habit as unmarried partners are not protected by Matrimonial laws in the same way as married couples.

It is important to note that a separation agreement is not the same as a divorce and does not legally end a marriage or civil partnership.

Is a separation agreement legally binding?

If a separation order is drawn up by a qualified solicitor and it is fair and understood fully by both parties, it can be a formal legal document. However, this does not make it legally binding and enforceable by courts. It is a contract technically if properly written by a family solicitor and therefore may still be challenged in that way.

To make a separation agreement legally binding for married couples, it would need to be made into a consent order, which can be done later in the divorce process. Your family law solicitor can draft the consent order and then apply to the court.

When can I make a legal separation agreement?

You can make a legal separation agreement at any time after you and your partner decide to separate. Whether you are married or in a civil partnership, but not ready to divorce/dissolve yet, or you are cohabiting partners who are splitting up, a separation agreement can be used to suite your individual needs. Common reasons people may want a separation agreement include:

• wanting to formalise arrangements while living apart but not divorcing yet
• a need to agree on finances, property, and children during the separation
• wanting to avoid court proceedings and settle things amicably
• a plan to divorce later and wanting a clear record of what was agreed

Does a legal separation include a financial agreement?

Separation agreements often include financial agreements laid out in the terms. This can include who is liable for debts, payments, property and other assets following the separation.

As these agreements are typically drafted by a solicitor they can be later used to create a court-approved financial order (a Consent Order) should a couple decide to proceed with a divorce.

How do I make a legal separation agreement?

The first step in making a separation agreement is to agree with your ex-partner what areas your separation agreement will cover, and what the terms of the agreement will be. It is best if you can agree on these terms amicably, but sometimes this isn’t possible.

Should you have complex arrangements regarding businesses or children, and struggle to come to an agreement, our family law specialist can help you. We can provide guidance and assist in mediation while offering legal advice that will help you make an informed decision. Following an agreement of terms, your solicitor will draft your separation agreement and can help renegotiate as necessary should either party contest it. You can then have the separation agreement signed and witnessed.

Later on in the divorce process, our family law experts can apply to court for a consent order with the financial terms of the separation agreement and make it legally binding for you both. If the judge thinks the agreement is fair and reasonable, they will approve it and make it legally binding.

Making a legal separation agreement requires expert knowledge of family law which our team can provide. We know when life does not look how you thought it would, how important compassionate and understanding advice is and we are here for you.

Call us on 0330 041 5869 or contact us online.

Frequently Asked Questions

Will a legal separation agreement be upheld in court?

These agreements are not automatically legally binding however a court will likely consider it if it was done to a high level. This means both parties provided full financial disclosure, received independent legal advice, and the terms are fair and reasonable. It is also important that both parties entered into this agreement willingly and were not coerced.

Why might a court not uphold a separation agreement?

The court can decide to override the agreement or parts of the agreement. This can happen if there is a significant change in circumstances, if the agreement was made under duress, or if it negatively impacts any children involved.

Is a separation agreement the same as a post-nuptial agreement?

No, these are two separate agreements. While you would need a solicitor for both, the intent of these two agreements differ in that a post-nuptial agreement is for couples who intent to stay together after outlining these terms. In contrast, a separate agreement is for couples to define what will happen as they split up.

Why would I choose a separation agreement?

A separation agreement is a clear plan for living apart that defines financial responsibilities, child arrangements, and asset division without the finality of divorce.

This offers couples time to reflect on what is happening and what they need, prevents misunderstandings, provides stability and clarity, and can be more flexible than immediate legal proceedings.