Separation Agreement – What is this?

You may consider a separation agreement, if you haven’t decided whether or not you want to get a divorce.

A separation agreement is an agreement between you and your spouse which deals with the financial side of things, such as who will pay the mortgage, until you decide whether to go ahead with a divorce.

What is a separation agreement?

A separation agreement is a contract between you and your spouse setting out how you will manage a variety of issues.

As well as financial arrangements, such as who will live in the family home and what will happen to any loans or investments you have, a separation agreement can also specify any childcare arrangements.

It is important to note here that until you and your spouse divorce, you will still be linked financially. A separation agreement does not change this.

A separation agreement is a contractual agreement tailored for individuals who are already married or in a civil partnership. A separation agreement must be formed with contract principles and the vital element is an intention to create a legal relations. It is therefore important for the parties who are wanting to enter in to such an agreement to seek independent legal advice before pursuing this matter further.

Parties to a marriage or civil partnership can enter into a written agreement setting out how they intend to deal with the distribution of assets, the arrangements to live apart, arrangements for the children and other practical issues as a consequence of a planned separation. This written agreement is called a separation agreement.

Separation agreements are usually entered into by parties who are separating, but do not want to issue divorce proceedings or dissolve the civil partnership. Most parties enter in to a separation agreement for the following reasons:

1. For religious purposes.
2. The parties’ want more time and space to work out whether they want to issue divorce proceedings or dissolve the civil partnership.
3. The parties have been married for less than one year.

When could a Separation Agreement be used?

A separation agreement could be useful if you haven’t made up your mind whether you want a divorce and would like clarity regarding how you will manage financial arrangements during your separation.

Alternatively, if a divorce is not possible until a later date, a couple may sign a separation agreement to manage finances in the meantime.

A separation agreement is a tailor made document and it can cover almost anything. We at Austin Kemp Solicitors will be able to advise you as to what kind of details should be included within the agreement. Typically the main focus of the agreement will be on finances but it can also deal with arrangements for the children.

At Austin Kemp we advise our clients to include the following:

• The date of your separation, and whether you are going to consider divorce or dissolve the civil partnership in the future and who would initiate the proceedings.

• What is to happen to property either of you brought into the marriage.

• What happens to savings, investments and other financial assets.

• What happens to any debts, such as loans or overdrafts.

• How the personal belongings or possessions are to be divided.

• What will happen to any future acquired assets.

• Whether maintenance payments need to be considered.

• Whether any trigger events will require a further review of the Separation Agreement.

• What will be the arrangements for the children.

• What the arrangements would be if either one of you should die. It is advised that each party has a Will.

• Who will pay the costs to prepare this agreement.

Why enter in to a Separation Agreement?

Most parties want to be organised and prefer to have a written agreement as a safety blanket to secure the financial and children arrangements.

Separation agreements can be useful when:
• One party to the marriage or civil partnership has considerably larger income than the other spouse.
• Either party wishes to protect assets owed prior to the marriage.
• The parties need to distinguish what is considered to be a ‘matrimonial asset or ‘non-matrimonial asset’.
• One or both of you has a connection with, or property in, another jurisdiction.

It is important to note that both parties must be open and honest about their finances. It is therefore, imperative for the parties provide financial disclosure to prevent the validity of the agreement from being challenged.

Separation agreement cons

A separation agreement is by no means your final financial settlement if you choose to get a divorce. A court may choose to entirely disregard your separation agreement when deciding your financial settlement. This means that your financial settlement upon divorce may look nothing like the separation agreement you agreed pre-divorce.

In addition, a separation agreement can only be changed if both you and your spouse agree on the changes. This can mean that if, for example, your circumstances change and you think you should be paying your spouse less maintenance than you agreed in your separation agreement, it can be difficult to make this change.

It is also worth bearing in mind that a separation agreement can be difficult to enforce.

Separation agreement pros

A separation agreement can serve as a useful document to show a mutually agreed date when your relationship ended.

What’s more, it could provide you and your spouse with certainty about how your finances will be dealt with now that you’ve ended your relationship. A separation agreement also has the added benefit that it is flexible, enabling you to include the issues that are important to you.

Although in the future a court could choose to disregard some or all of what you have agreed, a judge is more likely to uphold the terms of your separation agreement if it is fairly negotiated, with full financial disclosure by both parties.

However, bear in mind that should you ask a court to decide your financial settlement in the future, a judge would decide your financial settlement based on your current financial position, not the financial position you were in when you separated.

While in some instances a separation agreement can be very useful and can provide much-needed clarity, especially if you are unsure whether or not you want to get a divorce, it is normally better to begin the divorce process and start to work towards obtaining a legally binding financial agreement. As always, it is highly recommended that you seek legal advice for your individual circumstances, so you can make an informed decision on what is right for you.

Are separation agreements ever a good idea?

Separation agreements can have their uses such as showing an agreed date when your relationship ended or making sure your spouse can’t say that you deserted them. If your agreement is fairly negotiated with full financial disclosure by both you and your spouse, then a court is more likely to uphold it in the future.

It’s worth noting that if you do end up divorcing and going to court to decide your financial settlement, courts decide your financial settlement taking into account your current financial positions – not the financial position you were in on the date you separated. This could end up in you having a very different financial settlement than you would have done had you started the divorce process earlier.

Although there are some circumstances when legal separation agreements are useful, such as if you and your spouse aren’t sure that you want to end your relationship, it is usually better to start the divorce process and get a legally binding financial agreement – so you both know exactly where you stand financially.

Are Separation Agreements legally binding?

In England and Wales, a separation agreement is not considered to be binding even in the event of later divorce proceedings. A separation agreement is not a Court Order as the Court does not any involvement with drafting process. It is however, a contract and it can be challenged in a Court the same way as any other contract.

A separation agreement if implemented correctly by a legal representatives can be made into a Consent Order later in the divorce proceedings. This would make the agreement legally binding.

How can our expert divorce solicitors help you with separation agreements?

Our expert family law solicitors can help you with a range of legal issues relating to separation agreements, including:

• Prenuptial agreements
• Cohabitation agreements
• Post civil partnership agreements
• Divorce
• Domestic violence and harassment
• Child maintenance
• Child contact arrangements
• Divorce financial provisions

Contact our expert divorce solicitors for advice on separation agreements

For more information call our divorce solicitors on 0845 862 5001 or email mail@austinkemp.co.uk.

Our expert family law solicitors offer a nationwide service. We have client meeting office facilities available, in order to have face-to-face client meetings / conferences as and when required in:

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Please contact us for more details.