What is a separation agreement and when do you need one?

Divorce can be an emotionally challenging process with significant legal and financial consequences. Knowing when to divide any money, property and other assets/debts, as well as the legal mechanism for doing this, can be confusing.

In this blog, we’ll explore separation agreements, and how they are different to consent orders.

What is a separation agreement?

A separation agreement, also known as a deed of separation, is a legal document outlining how assets, debts and other financial considerations are to be dealt with if a couple separates. You can have a separation agreement whether you are ending a marriage (before or after your divorce), a civil partnership or a 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.

A separation agreement doesn’t need to be filed in court, however, it would need to have been legally drafted, entered into freely, witnessed and signed by both parties. Importantly, it’s not automatically legally binding, but if drafted correctly, it can carry significant weight in court proceedings.

What’s the difference between a separation agreement and a consent order?

A separation agreement doesn't go through the court and is therefore not automatically legally binding. A consent order, on the other hand, is reviewed by a judge and is legally binding once approved and sealed by the court making it automatically enforceable. If your circumstances change dramatically, then ‘needs’ may override what was initially agreed in the separation agreement.

If you’re confused about separation agreements and consent orders, book a free 15-minute call with our amicable Specialists to learn more about the process and your options.

Another difference is around relationship status. You can only apply for a consent order if you’re married/ in a civil partnership and have reached the conditional order (formerly decree nisi) stage of the divorce/ dissolution process.

A separation agreement is viewed as a good way of outlining how you’ve divided your finances if you’re ending a cohabitating relationship, as you are unable to apply for a consent order.

It's important to note that there are certain things that you cannot do or include in a separation agreement, such as a pension share. You can record your intentions in relation to a pension share but the only way a pension provider can implement a pension share is with a sealed consent order and a final divorce order (formally known as a decree absolute).

If you’re married / in a civil partnership, a consent order doesn’t end your financial relationship with your ex-partner. Only a ‘clean break’ in a financial order (a consent order if you’re in agreement) will.

Do I need a separation agreement?

This will depend on your situation. If you've started the divorce process and plan on making financial arrangements which you wish to record and implement before a consent order can be applied for/sealed then it is always a good idea to record your agreement in a separation agreement before you take any action.

When should I get a separation agreement?

If you’re ending a marriage / a civil partnership, you may wish to get a separation agreement at the start of the process, if you plan on dividing your finances straight away. It’s a way of documenting how you deal with the proceeds from a property sale and so on. This would then normally form the basis of the consent order once you reach the conditional order stage of the process.

How long does a separation agreement take?

It takes around two to three weeks, however, this will depend on how quickly you’re able to gather the relevant financial information, whether you’ve fully agreed on your financial arrangements and who is drafting your separation agreement. Unlike a consent order, a separation agreement doesn’t need to go through the court so you won’t need to factor in court processing time.

How much does it cost?

This will depend on who drafts your separation agreement. For example, amicable offers a fixed price separation agreement service for £900 per couple/ £450 per person.