If you and your partner have decided to separate, but have not yet filed for divorce or made it official, you may wish to draw up a separation agreement. These can also be used if you just wish to have a trial separation. The agreement sets out financial arrangements while you are separated, such as who will pay the mortgage and bills.
What can a separation agreement be used for?
If you haven’t yet decided whether to divorce, or if you are unable to do so for religious or legal reasons, then a separation agreement can be drawn up. Along with setting out who will pay the mortgage and bills, it also covers:
- Who shall live in the family home, or who will benefit from the sale of the house if/when it should be sold.
- What will happen to any savings, but also what will happen to any debts etc.
- Who shall keep items bought together e.g. cars
- If there are children involved, whether any maintenance needs to be paid, and where the children shall live
Is a separation agreement legally enforceable?
Whilst separation agreements aren’t technically legally enforceable, they do carry weight if they are seen to be a fair settlement by the court.
This will be based on whether or not you have both been open and honest about your finances. The judge will also look at whether you took independent legal advice about the agreement. If this is the case, then it would be hard for either of you to argue against the agreement in court.
However, some terms in a separation agreement will not be enforceable by the courts, for instance if the agreement includes a clause that says you will never have to pay child support.
Why get a separation agreement?
In England and Wales you must have been together over a year in order to get a divorce. After this time, you must either prove adultery, unreasonable behaviour, desertion or that you have been living apart for at least two years (or five years if only one of you agrees to the divorce). As a result, some couples may wish to get a separation agreement if they have been married for less time, or are unable to fulfil one of the conditions for divorce.
Others may require a separation agreement as they are unable to get divorced due to religious reasons, or if they wish to remain legally married.
Whilst separation agreements leave the possibility of reconciliation open, and mean that you won’t have to take the matter to court, they can also lay the groundwork for future divorce as they can be used to prove the date of separation. Plus, they may also form the basis of how the courts decide responsibilities and assets should be divided. As long as the agreement is fair to both spouses, then the judge is likely to accept it.
Separation agreements can also be used even when you’re not married. Unmarried couples may still hold jointly-held assets and responsibilities, including children. A separation agreement will allow you to choose what is fair for both parties, and reduces the chance of misunderstandings between you, especially further down the line.
What are the pros and cons?Pros:
- If the agreement includes the fact that you don’t have to live together, this prevents your spouse being able to claim desertion (or vice versa) in order to obtain a divorce.
- It can provide you with a date of separation that can then be used in court later down the line.
- You have the flexibility to choose what you wish to include.
- Breakdowns in relationships are hard, and a separation agreement will not only provide clarity and certainty but it also takes the heat from the situation so that you are both aware where you stand.
- Whilst it is not legally binding, if the agreement was reached fairly and legally then it is likely to be upheld in court.
- Separation agreements are difficult to enforce, and are not necessarily the final word. A court may choose to totally disregard the agreement.
- Changes can only be made if you both agree to them.
Are there any other options?
If you are thinking of drawing up an agreement because of religious reasons, or you wish to remain legally married, then you could also consider the option of a legal separation, also known as a judicial separation. This means that your marriage or civil partnership isn’t legally ended, so you are not free to remarry, but you are legally freed from the obligation to live together.
Do I need a lawyer for a separation agreement?
Yes, it is best if you seek legal advice, as this will mean that a judge is more likely to uphold the agreement later down the line. It also means that you are aware of your rights, and what is reasonable for you to request within the agreement, so that it is fair to both of you.
A lawyer will also be able to advise you if there are any reasons that you shouldn’t enter the agreement.
Legal advice is also best if there are problems within your break-up, this includes where one of you has more assets than the other, or where your ex-partner is pressuring you into signing the agreement.
Even if you have already drawn up an agreement with your ex-partner, it is recommended that you ask a solicitor to check it for you, and to draw it up as a legal document to make it more viable in court.