If you’re thinking about getting divorced or dissolving your civil partnership in England, Wales or Northern Ireland, but haven’t filed the papers yet, you can get a separation agreement drawn up. This sets out who’ll pay the rent or mortgage and bills, until you decide whether to go ahead with your divorce or dissolution.
What’s in this guide
What is a separation agreement?
A separation agreement is useful if you haven’t decided whether to divorce or dissolve your civil partnership, or if you can’t do so yet. It’s a written agreement that usually sets out your financial arrangements while you’re separated. It can cover a range of areas, including:
- who pays the mortgage or rent and household bills
- who continues to live in the family home, and/or what happens if it’s sold
- what happens to any debts – for example, loans or overdrafts
- what happens to savings, investments and other financial assets
- what happens to items such as cars or furniture, especially bought jointly
- whether maintenance is paid to support one of you and/or any children
- childcare arrangements – who any children live with and parental access.
Don’t feel pressured
Don’t feel pressured into a decision that’s not right for you. If your partner makes you feel anxious or threatened, it’s important to get help. Remember you don’t have to struggle alone. For guidance on what you can do, read our guide Financial abuse: spotting the signs and leaving safely.
Are you planning to make your separation permanent? If so, the separation agreement should set out the financial agreement that will be presented to the court when the divorce or dissolution finally goes through.
To make your financial arrangements legally binding after divorce or dissolution, you'll usually need a financial consent order approved by the court. A separation agreement can help form the basis of this, but the court must still be satisfied the terms are fair.
Pros and cons of a separation agreement
Pros
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You agree that you don’t have to live together, so your ex-partner (husband, wife or civil partner) can’t allege you’ve deserted them or vice versa.
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It shows that you both consider the relationship to have ended and the date it ended.
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It’s flexible – you can decide what you’d like to include.
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If you stick to it, an agreement can take the heat out of the breakdown of the relationship and means you both know where you stand.
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It gives you both clarity and certainty.
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Although they’re not legally binding, the court will uphold – if challenged – agreements that have been properly and fairly negotiated.
Cons
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It’s not easy to enforce.
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It can only be changed if both of you agree to the changes.
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A court might disregard some or all of it if you go on to divorce or dissolve your civil partnership – it’s not the final word. Still, a properly negotiated agreement is a contract the court can give significant weight to.
Financial disclosure: being open about your money
To help make sure a separation agreement isn’t challenged, you and your ex-partner need to be fully open about your finances. This is called ‘financial disclosure’.
That way, each of you’ll know what the other person has in:
- debts
- savings
- property
- investments.
And you can agree what you’re each responsible for paying.
If you’re not open and honest about your finances, it’s likely to mean you can’t rely on the agreement in the future.
Should I use a mediator?
A mediator can help you and your ex-partner sort out children, housing and financial matters. They don’t take sides or give advice. Instead, they can help you work towards an agreement. More solicitors specialising in family law are now also trained mediators.
It can be quicker and cheaper than a traditional lawyer-led divorce or dissolution. And couples can feel more in control of the agreement.
However, mediators can’t give legal advice. That means it’s important to see a solicitor before you start mediation so you know your rights.
You will need a solicitor to draw up a legal agreement formalising anything you’ve agreed.
Find out more in our guide Your options for legal or financial advice on divorce or dissolution.
Should you get legal advice?
You don’t need to get legal advice when you write a separation agreement, but it’s a good idea to.
There are several reasons why:
- Because you’re entering into a potentially legally binding agreement.
- You can get advice about whether there are any reasons why you shouldn’t sign the separation agreement before you go ahead.
- Your separation agreement is more likely to be legally binding if you and your ex-partner have provided full financial disclosure, and you’ve both had independent legal advice from a solicitor.
It’s especially important to speak to a solicitor if your break-up is causing problems. For example, if one of you is much wealthier than the other or if your ex-partner is bullying or intimidating and puts pressure on you to sign an agreement.
What if you and your ex-partner have already decided and agreed what you’d like to include in your separation agreement? Next, it’s important to each ask your own solicitor to check it and draw it up as a legal document.
Usually, you'll each need your own solicitor, as one solicitor can't advise both of you if there is a conflict of interest in doing so.
However, some firms do offer a shared service where one lawyer works with both of you. This is only suitable in certain circumstances, where the split is amicable and specific safeguards are in place.
If this could work for you and your ex-partner, it's worth asking any firm you approach whether they offer a ‘one lawyer for both of you’ option, and whether it's right for your situation.
When can you use a separation agreement?
You can use one if you and your ex-partner are considering – but haven’t decided – getting divorced or dissolving your civil partnership.
You can also use one if you’re not able to divorce or dissolve your civil partnership – but want to agree who pays what. For example, perhaps you live in England or Wales and have been together for less than one year, or less than two years in Northern Ireland.
Is a separation agreement legally enforceable?
A separation agreement is not a court order, so it isn't legally binding in the same way a court order would be.
However, a separation agreement is still a contract, and a court may give it significant weight and hold both of you to its terms if appropriate.
It might be hard for either of you to argue in court that you shouldn’t have to stick to the agreement if:
- you’ve both been open and honest about your finances
- your financial situation is broadly similar to when the agreement was made
- the terms of the agreement are still ‘fair’
- you both had independent legal advice about the agreement.
A court won’t allow – for example – one of you to be bound by a term in the agreement that said you might never go to court for maintenance or child support.
Understanding legal or judicial separation
In rare cases, you might decide to go for a legal separation (also called a judicial separation).
The main reasons for this are:
- your religion forbids you getting divorced or dissolving your civil partnership
- you want more time and space to work out whether to divorce or dissolve your civil partnership
- you’ve been married or in a civil partnership for less than one year in England or Wales, or less than two years in Northern Ireland.
It’s a much more formal process than drawing up a separation agreement. You have to ask for a legal separation by filling in a form and sending it to your local court. There will be a court fee to pay.
A legal separation doesn’t end a marriage or civil partnership – you’re simply freed from the obligation of living together.
This doesn’t mean you’re free to remarry or enter into another civil partnership.
However, it is possible to agree a legally binding financial settlement with judicial separation, including lump sums, property and maintenance payments. The only exception is agreeing what happens with your pensions, as pension sharing is only available if you divorce or dissolve your civil partnership.
Your next step
It’s worth taking a look at our guide Your options for legal or financial advice on divorce or dissolution.
