If you’re thinking about getting divorced or dissolving your civil partnership in Scotland, 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 is a separation agreement?
A formal separation agreement (also known as a ‘minute of agreement’) is a legally binding document that sets out what a separating couple has agreed.
Provided it’s registered, it carries the same legal weight as a court order – which is where the courts say how a couple should divide their property and assets – and can be enforced in the same way.
This means it can be used by couples who separate but who don’t want to divorce or dissolve their civil partnership.
It can cover a range of areas, including:
- who pays the mortgage or rent, and household bills
- what happens to any debts, such as loans or overdrafts
- what happens to savings, investments and other financial assets
- who continues to live in the family home and/or what happens if it’s sold
- what happens to items such as cars or furniture, especially bought jointly
- whether payments are made to support one of you and/or any children
- childcare arrangements – who any children live with, and parental access.
Financial disclosure: being open about your money
If you don’t want your separation agreement to be challenged – for example, for being unfair or unreasonable – you and your ex-partner (husband, wife or civil partner) need to be completely open and honest about your finances.
This means that each of you will know what the other has in:
- debts,
- savings
- property
- investments.
That way, you can both agree what you’re each responsible for paying.
Should I get legal advice?
You don’t have to get legal advice when you put together a separation agreement, but it’s a good idea to.
That’s because anything you decide to include in it is legally binding. And you won’t be able to change your mind after you’ve agreed to it.
It’s especially important to speak to a solicitor if:
- your break-up is acrimonious
- one of you is much wealthier than the other, or
- your ex-partner is bullying or intimidating, and puts you under pressure to sign the agreement.
If you’ve both already agreed on what to include in your separation agreement, you need to each ask your own solicitor to check it and draw it up as a legal document
When can I use a separation agreement?
You can use one if you and your ex-partner are considering getting divorced or dissolving your civil partnership and:
- you want to sort out your finances between you without asking the court to
- you’re not able to divorce or dissolve your civil partnership – for example, for religious reasons – but want to agree who pays for certain things
- you want to wait before you go ahead with a divorce or dissolution, but you want to sort out your joint finances and/or childcare arrangements now.
Is a separation agreement legally enforceable?
Separation agreements are legally binding in Scotland and it can be enforced in the same way as a court order if the agreement is registered.
This means that you need to think carefully about what you are agreeing to.
It’s important that you and your ex-partner reach a fair agreement about:
- who pays the mortgage or rent, and bills
- how you deal with your other financial assets or debts.
But it’s important not to agree to anything you can’t keep to.
Understanding legal or judicial separation
In rare cases, people who don’t want to divorce or dissolve their civil partnership – for example, for religious reasons – use ‘judicial separation’ (also called a ‘legal separation’).
You would have to apply to the court for a ‘decree of separation’.
But very few people use this because separation agreements are legally binding in Scotland.
