What is a separation agreement?

People who are already married or in a civil partnership can enter into a written agreement setting out what they intend to happen to their money, property and other practical issues as a consequence of their current or planned separation. This written agreement is called a separation agreement. Separation agreements are usually entered into by parties who are separating but who do not want to divorce or dissolve their civil partnership at that time. They are contractual agreements between parties to a marriage or civil partnership dealing with your agreement to live apart, your obligations to maintain one another and any children of the family, the distribution of your assets and arrangements for the children of the family.

What sort of things can a separation agreement cover?

These agreements are bespoke documents drafted for your particular circumstances, so can cover almost anything you wish. Nevertheless, there are a number of common themes that couples usually wish to cover in their agreement, such as:

  • Recording the date on which you separated, whether you are going to get divorced and the details of this
  • What is to happen to property either of you brought into the marriage, including your home
  • What is to happen to any property given to you or inherited during the marriage, or any income or assets derived from trusts
  • What is to happen to any saved money earned during the marriage and your pensions
  • How are you going to deal with any debts
  • Whether either of you are to pay or receive any maintenance and, if so, for how long
  • What the arrangements are for any children of the family, in both financial and practical terms, such as where the children will live and when they will see their parents.

In order to make the separation agreement as persuasive as possible in any future divorce or dissolution proceedings, you both need to disclose and set out your financial circumstances in full and take independent legal advice on the agreement and its effects.

Are separation agreements binding on the court?

Separation agreements are not binding on the court in the event of a later divorce or dissolution. Parties to a marriage or civil partnership cannot contract out of the court’s jurisdiction to make orders for financial provision upon divorce or dissolution and the court is entitled to overrule an agreement between parties in certain circumstances. However, the existence of a separation agreement will be one of the factors that the court considers and it may have a persuasive or even decisive influence on the outcome of either party’s application for financial remedy, depending on the precise circumstances surrounding the completion of the agreement. The court's role will be to decide whether the agreement is 'fair'. Agreements are more likely to be considered to be fair if they are recent, if circumstances have not changed and if you both knew exactly what you were getting into when the separation agreement was made, both legally and financially, without undue pressure being applied.