Splitting up: Should we draw up a separation agreement?

by Punam Denley, family law solicitor

From Lawpack's How to Get a Divorce Guide

In my experience as a divorce lawyer, there is a lot of confusion about what separation is. 

You can be separated but remain married. This period of separation can count towards the divorce, if you finally decide to divorce. 

You can also be separated even though you continue to live under the same roof; this is called ‘living in two households’. 

Some people believe that they are practically divorced, or that they don’t have to do very much to get a divorce, after they have lived apart for a number of years. 

The truth is that you have to go through the same procedure no matter what the reason for your divorce, and it takes just as long. 

If you divorce and get your financial split approved by the court, your former spouse can’t make any money claims against you in the future, apart from changing the maintenance. 

If you separate, you can’t get any financial agreement approved by the court, so you are still at risk of money claims being made against you by your spouse for many years to come.

Do you need a separation agreement?

Some couples draw up a ‘separation agreement’, which sets out the following details about the separation:

  • The date of the separation
  • Who will bring the divorce petition (if appropriate)
  • Where the children will live
  • Contact arrangements with the other parent
  • The financial agreement reached between you on maintenance and capital. 

It may also acknowledge that a property has been sold and how the proceeds have been divided.

Does the separation agreement need to be put in writing?

There is no need to put a separation agreement in writing, but it can be an important piece of evidence later if one of you wants to go back on it.

Generally, you have the basis of an agreement in relation to future arrangements such as maintenance payments.

If you want to put it in writing, then Lawpack's solicitor-approved Separation Agreement is here to help.

The pros and cons of a separation agreement

One advantage of a separation agreement is that you can agree to split the money straightaway, without waiting for the divorce/dissolution. 

If you have a separation agreement and you have agreed that your spouse will take on the mortgage, and take your name off it and the deeds for the house, you can buy a new place without having to wait for the divorce/dissolution.

One of the disadvantages of a separation agreement is that neither the court nor the couple have to keep to it. 

In addition, when you do decide to dissolve your marriage or civil partnership, you will need to pay out again for the financial agreement being made into a document that the court can approve. This will mean a double charge if you have already had a lawyer draw up your separation agreement

One thing you might consider before signing a separation agreement is that if you have decided to split, why wait to divorce? You may as well get it over with. Renegotiating the money on a divorce/dissolution can open up old wounds.

Can I get the court to approve our separation agreement?

Generally, you can’t get these approved until you are divorcing, unless you are judicially separating. 

There are no hard-and-fast rules on this, and there are cases which suggest that some people are held to these agreements, whilst others are not, for a variety of reasons. 

However, if you fulfil enough of the criteria, you have a good chance of creating a binding agreement. Some of the criteria is set out below:

  1. Each of you should give full disclosure of your financial circumstances.
  2. Each of you should take independent legal advice.
  3. There should be an absence of duress, or pressure on one party to sign off on the agreement.
  4. Each of you should have time to consider your position.

The court can take many different factors into account and the above list is not exhaustive.

If you think that your marriage is over, and you want to finalise everything, financially you are probably better off getting divorced sooner rather than later. 

A separation agreement is a good idea if you think you might reconcile and just want to put some interim arrangements in place, rather than taking the drastic step of ending your relationship.

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Published on: July 31, 2012

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