28 Apr Separation agreement, what is it and do I need one?
Katharine Scoot, Family Solicitor and partner at HRJ Foreman Laws Solicitors answers questions about a separation agreement, to help you decide the best approach for you.
A separation agreement can be a practical and constructive step for couples who have decided to live apart but are not yet ready to divorce, or who want to record their arrangements before divorce proceedings begin.
It can provide clarity at a difficult time, reduce the potential for future disputes, and help both parties move forward with a clear understanding of what has been agreed.
What is a separation agreement?
A separation agreement is a written agreement between a couple who have separated, or are about to separate, setting out the arrangements they have agreed between themselves.
In England and Wales, separation agreements are commonly used by married couples and civil partners who want to formalise matters such as finances, property and practical arrangements while they remain legally married or in a civil partnership.
A separation agreement is not the same as a Financial Order from the court. However, if it has been properly prepared, entered into freely, and both parties have given full and frank financial disclosure and had the opportunity to take independent legal advice, it can carry significant weight if the matter later comes before the court.
When is a separation agreement used?
A separation agreement may be used when:
- A couple has separated but does not wish to divorce immediately.
- The parties want time apart before deciding whether the relationship has ended permanently.
- There are financial arrangements that need to be recorded straightaway.
- One or both parties have religious, personal or practical reasons for delaying divorce.
- The parties want to reduce uncertainty and avoid disputes while living separately.
- Divorce proceedings are anticipated, but the parties want an interim or early record of what has been agreed.
- For some couples, a separation agreement provides breathing space. For others, it is an important stepping stone towards divorce.
How is a separation agreement different from a Financial Order?
A separation agreement is usually made while the parties are separated but still legally married or in a civil partnership. It can be an important agreement for moving forward amicably, but it does not provide the same finality as a court-approved financial order made during divorce proceedings. It does not give the parties to the agreement a “clean break” in the same way as financial court order can.
What can a separation agreement include?
A separation agreement is tailored to your unique circumstances. But typically, it will consider:
Property
- Who will remain in the family home?
- Can the property be sold?
- How will mortgage payments, insurance and outgoings will be met?
- What will happen to any sale proceeds in the future?
Finances
- How will savings and investments be divided?
- Who is responsible for debts and liabilities?
- How will the payment of household bills be managed?
- Will one party provide financial support to the other?
- What are the future arrangements for joint bank accounts or other shared financial commitments?
Personal possessions
- How will cars, furniture and other belongings be divided?
Pensions
- What are your current intentions regarding pensions?
Important note: a binding pension sharing order can only be made by the court on divorce or dissolution.
Is a separation agreement legally binding?
In England and Wales, a separation agreement is not automatically binding in the same way as a court order. However, the court may attach significant weight to it later, particularly where:
- Both parties entered into it freely.
- There was no undue pressure or unfairness.
- Each party gave full and frank financial disclosure.
- Both parties understood the implications of the agreement.
- Each had the opportunity to obtain independent legal advice.
- The terms were fair at the time and remain fair when later considered.
The court retains discretion in financial matters on divorce. That means a separation agreement cannot completely prevent either party from applying to the court for financial remedies in the future only a financial court order can give you a clean break to prevent future claims.
What happens when it comes to divorce?
If the parties later decide to divorce, the separation agreement does not simply convert into a Financial Court Order automatically. The parties will still need to file a Financial Order with the court once the divorce reaches the conditional order stage.
Why a financial consent order still matters after divorce
Even where parties have separated amicably and reached an agreement between themselves, a court-approved Financial Consent Order remains important on divorce because it provides legal finality in relation to financial claims.
Without a Financial Order, claims between spouses may remain open, even after the final order in the divorce has been made.
Is a separation agreement right for everyone?
Not always. In some cases, immediate divorce proceedings and a Financial Consent Order may be the more appropriate route. In others, particularly where there is a wish to delay divorce or create structure during a period of separation, a separation agreement can be a sensible and effective option.
Its value will depend on the couple’s circumstances, the quality of the financial disclosure, and whether the terms are fair and carefully documented.
In summary
A separation agreement can be a useful way of recording arrangements when a relationship has come to an end, but the divorce has not started, or divorce is not yet desired. It can cover finances, property and practical family arrangements.
However, it is not the same as a Financial Order which has been approved and sealed by the court once the divorce has reached the conditional order stage this can give parties a full financial clean break.
For more information:
- Divorce, dissolution and separation
- Child arrangements
- Matrimonial finances
- Video – Separating after a relationship breakdown explained.
For legal advice:
- Email info@hrjforemanlaws.co.uk
- Call Hitchin, 01462 458711, Welwyn Garden City, 01707 887700, Old Harlow 01279 709 100.
- Complete our contact form here