What is a separation agreement?
A financial separation agreement in England and Wales sets out how you’ll split your finances when you end your relationship and stop living together as a couple. You can have a separation agreement whether you are ending a marriage (before you divorce), a civil partnership or cohabiting relationship. The agreement sets out things like who will pay the rent or mortgage, which bills you will each pay, whether one person will pay any child or spousal maintenance and what will happen to the proceeds of sale if a property or asset is sold.
When would I need a separation agreement?
1. If you’re not ready to divorce
If you’re not ready to divorce but want to document how your finances will be split/ managed a separation agreement will enable you to split your finances, without needing to have started divorce proceedings - however, the agreement is not necessarily enforceable by the court.
2. If there’s a chance of reconciliation.
If you want some breathing room to decide whether you and your ex should divorce or end your civil partnership, a financial separation agreement allows you to outline how it could work without legalising through the courts.
3. If you're relationship ends when you’re cohabiting.
A separation agreement will spell out how you and your ex should split your finances if you're not married and you separate.
The above list is not exhaustive, and there may be many more reasons why a couple may choose to have a separation agreement.
What is a binding separation agreement?
Whilst there is no such thing as a legally binding separation agreement, as a contract it can be upheld or challenged in court. The separation agreement must be entered into voluntarily and you must have completed a full financial disclosure if you are relying on a separation agreement in court. You can also have your separation agreement turned into a financial consent order by the court when you divorce/end your civil partnership if it’s been correctly drawn up. If you require any help drafting either your separation agreement or consent order, amicable offer a drafting service for both.
How much does it cost to get a Separation Agreement?
It depends on which route you choose. For example, the guideline hourly rate for a solicitor/lawyer with around four years’ experience nationally is between £177 - £192.
amicable offer a fixed price separation agreement service for £900 per couple / £450 per person. This service is for couples who want to document how their finances will be separated. If you’re not fully committed to the idea of getting divorced/ dissolving your civil partnership, a separation agreement is a good idea to keep things amicable in the interim.
How do I enforce a Separation Agreement?
As mentioned above, separation agreements aren’t technically legally binding. If you would like your financial agreement to be made legally binding and enforceable then read below:
For married couples/ couples in a civil partnership:
Get a consent order, which is the legally binding document that will formalise your financial arrangements through the courts and end the possibility of future claims.
You will need to be at the decree nisi stage before you can submit your financial arrangements to the court (which is around halfway through the divorce/dissolution process).
Once a consent order has been sealed by a judge and you’ve reached the final stage of the divorce/dissolution, it is legally binding and can’t be undone. If you would like to learn more about consent orders and what they are, read our helpful consent order guide.
For cohabiting couples:
In England and Wales, there is no legal documentation available yet that will make your financial split legally binding, however, a separation agreement is a contract agreed upon by two people and depending on its terms can be easily enforced. If you’d like to speak to one of our experts today about your personal situation book a free 15-minute call.
Does a separation agreement have to be filed anywhere?
In short, no, a separation agreement doesn’t need to be filed, however, if it’s being drafted as a deed of separation then it needs to satisfy the requirements of a deed. Ie. it needs to be properly drafted, witnessed as a deed, signed by both parties etc.
Do I need a separation agreement?
No, you don’t need a separation agreement, but it’s a good idea if you want to split your finances before you are divorced/ dissolve your civil partnership, it also helps to keep things amicable in the interim.
Do the courts attach significance to separation agreements?
Yes, a separation agreement serves as persuasive evidence in court and therefore can be viewed as significant, however, this will depend on how enforceable the terms are.
A separation agreement is usually the precursor to a consent order, however, time and circumstance will alter how enforceable the separation agreement is.
What conditions need to be met for the court to take a separation agreement seriously?
It must be entered into ‘willingly’ by two parties who mutually decide upon the terms and it should be deemed a fair split.
When might the court not uphold a separation agreement?
A court may not uphold a separation agreement if any of the terms are deemed unfair, or a significant period of time passes which affects the enforceability of the terms. Talk to one of our experts today to discuss whether this might be the most amicable option for you.
Does this apply across the UK?
The above information applies exclusively to England and Wales as they are covered by the same laws, however you can also have a separation agreement in Scotland and Northern Ireland.