A separation agreement can be ideal if you and your partner split up and want to figure out how to separate your finances but perhaps aren’t yet ready to divorce.
This could be because you’re not able to get divorced, perhaps because one person doesn’t want to blame the other for the relationship breaking down (‘no blame’ divorce in England and Wales only comes into effect on 6 April 2022), or maybe because you haven’t quite decided whether you definitely want to take this step.
This article will take you through the basics of separation agreements and why and when you might want to consider one.
What is a separation agreement?
A separation agreement is a document that divides assets, debts, and other financial responsibilities when a couple is preparing to end their relationship, either temporarily (say if you are taking a break but don’t want to commit to divorce or dissolution) or permanently (if you are sure you want to get divorced or dissolve a civil partnership but cannot yet).
A separation agreement can cover:
- who pays the mortgage, rent, and household bills
- who continues to live in the family home or what happens if it’s sold
- how debts such as loans or overdrafts are split
- what happens to savings, investments and other financial assets
- what happens to items such as cars or furniture, especially those bought jointly
- whether maintenance is paid to support one of you and any children
- who the children stay with (if you have any) and guidelines for parental access.
Both you and your partner will have to provide full details of your finances to go ahead with a separation agreement. This is known as “full financial disclosure”.
Changes can be made to the agreement later on if you both agree to it. If you go on to get divorced or dissolved, then arrangements can be changed at this point too.
Is a separation agreement legally binding?
Separation agreements are not technically legally enforceable. However, you or your ex-partner would likely have a very difficult time arguing against its terms if a financial dispute between you ended up in court, particularly if you had both consulted with a solicitor while drawing it up. For this reason, it can still act as a very firm guideline.
When is a separation agreement useful?
There are a few scenarios where a separation agreement might be useful.
Firstly, if you and your partner decide you might want to take a break from the relationship and live separately. This is known as a trial separation, and gives you both a chance to move on with your lives and finances separated, but without fully committing to divorce or dissolution, in case you change your minds later.
Secondly, you might get a separation agreement because you cannot get a divorce or dissolution yet, but still want to separate. The most likely circumstance here is that you do not have ‘grounds for divorce’ yet. In the UK, there are five grounds for divorce, and at least one of them must apply for you to legally apply for divorce. The five grounds are adultery, unreasonable behaviour, desertion, living apart for at least two years, and living apart for at least five years. If none of the first three apply, then a separation agreement would allow you to live apart and apply for divorce on one of the last two grounds (after two years you can apply for divorce if you both agree, after five years you can apply for divorce without your spouse’s consent). As previously mentioned, this will change in April 2022, when couples will no longer have to cite blame when they divorce.
It is not strictly necessary to get a separation agreement to get a divorce, no matter which grounds you are applying on – it mainly just provides a guideline to make the separation process simpler.
Thirdly, you might simply want to separate from your spouse but remain legally married for the time being.
Do I need legal advice to get a separation agreement?
It’s not compulsory to take legal advice in order to get a separation agreement, but it is recommended, as you are signing a document which will likely have a big impact on your finances and living situation for the foreseeable future.
It is therefore wise to consult with a solicitor and see if they have any input. They can advise you as to whether there are any reasons to not go ahead, and may provide crucial help if, for example, there is a significant gap in the wealth between you and your partner.
Even if you and your partner are both agreed as to the terms of the agreement, you should still consult a solicitor to draw up the document. Bear in mind that you cannot use the same solicitor as your partner.
If you’re looking for a solicitor, you can find one through the Law Society’s free Find a solicitor service. Make sure you check reviews for the solicitor you’re planning to use, so you can see how other people have rated their service.
If you’re separating and having trouble agreeing on how to divide your possessions, try our article How to divide your things when you divorce or separate. If you’re having the same issue regarding your home, our article Splitting the family home and mortgage during divorce, dissolution or separation provides some ideas for that too. And our article Joint bank accounts: what happens if you split up? might make the financial side of things a little bit clearer.
If you think mediation could be an option to help you resolve things, visit the National Family Mediation website. More divorcing couples than ever are seeking ways to go through the separation process amicably, without the need for lawyers.
Alternatively, you can find a solicitor with the help of Resolution, a membership organisation for professionals who work with separating couples. All members commit to taking a non-confrontational approach to help couples resolve their issues.
Find out more about separating your finances when a relationship ends in our articles Sorting out your finances when a relationship ends and How are pensions shared in divorce.