What is a Separation Agreement?

A Separation Agreement is a written agreement made between a separating couple. The couple agrees the terms of the separation including reference to maintenance, division of property and any other financial provisions that may be agreed.

If you and your spouse or civil partner wish to separate, but:

• do not yet wish to start the formal process of divorce proceedings
• you have not met the legal requirement for divorce, (for example if you have been married for less than 12 months)

Then you may wish to enter into a Separation Agreement to set out your arrangements in the meantime.

What is included in a Separation Agreement?

The provisions usually include:

• An agreement to separate. This provides evidence that the marriage is at an end which can be relied on in future divorce proceedings based on 2 or 5 years’ separation.
• An agreement to pay maintenance – a provision for maintenance for either the parties or the children.
• An agreement in relation to the family home – such as who shall occupy the property or whether it shall be transferred or sold and when.
• Dealing with the payment of the household bills and the mortgage.
• Arrangements for children. With whom the child shall live or spend time with. Although, this does not prevent an application being made separately under the Children Act 1989.
• Dealing with savings and investments
• Dealing with any debts or loans 

What are the advantages of making a Separation Agreement?

A Separation Agreement formally documents the arrangements that have been agreed and what steps need to be taken. This provides clarity and can help to avoid misunderstandings in the future.

It provides you with time to reflect before entering into divorce proceedings, and provides flexibility as to the terms of the agreement. The agreement can also be taken into account by the court in any future financial remedy proceedings and can help to speed up any future court process.

It should be emphasised that a Separation Agreement is not legally binding in the same way that a court order is. It is more likely to be upheld by a court in later divorce proceedings if certain formalities have been adhered to. Both parties should:

• take independent legal advice on the terms of the agreement
• should meet the parties needs, and;
• should be full and frank financial disclosure before the agreement is finalised.

Provided both parties remain happy with the Separation Agreement at the time of their divorce, its terms can be converted into a Consent Order. This will make the agreement legally binding.

At Birkett Long our specialist divorce and separation lawyers can offer independent legal advice regarding Separation Agreements and the pros and cons of these for you.

We offer a free 15 minute telephone consultation, so if you would like to discuss making a Separation Agreement, please contact one of our specialist divorce lawyers.Contact me on 01206 217384 or on mel.loxley@birkettlong.co.uk.