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 between you and your ex-partner. It’s a legal agreement that shows how you plan to divide your finances and any childcare arrangements before you 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.
If you're separating from your partner, a separation agreement lets you formally agree how you'll divide your finances and arrange childcare before you apply for a divorce or dissolve your civil partnership.
It can cover a range of areas, either as a short-term measure or a longer-term arrangement, including:
- who pays the mortgage or rent and household bills
- who stays in the family home (if it’s agreed it will be transferred to one of you)
- plans for selling the family home, including when it will be sold and how the proceeds will be split
- what happens to any debts, such as loans or overdrafts
- what happens to savings, investments and other financial assets
- whether any pensions will be shared between you – known as 'pension sharing'
- what happens to any joint accounts and how they'll be managed until they're closed or one name is removed
- 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
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, you will each know what the other has in:
- debts
- savings
- property
- pensions
- business assets
- investments
- personal property, such as cars.
And you can both 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.
You can find out more about mediation from these services in Scotland:
It can be quicker and cheaper than a traditional lawyer-led divorce or dissolution. And you might 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.
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.
Anything you decide to include in a separation agreement is legally binding. It’s very difficult to undo – unless you both agree or go to court – so think carefully before signing anything.
It’s especially important to speak to a solicitor if:
- you're not on good terms with your ex-partner (the break-up is acrimonious)
- you have assets that were gifted or inherited from a third party
- your finances are complicated, for example business assets
- 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 ask your solicitor to draw it up as a legal document. You should then ask your ex-partner's solicitor to review and check it’s fair and reasonable.
You and your ex-partner cannot use the same solicitor in case there is a conflict of interest.
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 and any childcare arrangements between you without asking the court
- 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.
Is a separation agreement legally enforceable?
Separation agreements are legally binding in Scotland, and they 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 and not say yes to anything you can't commit to.
Understanding legal or judicial separation
In rare cases, people who want to live apart but who don’t want to divorce or dissolve their civil partnership – for example, for religious reasons – use ‘judicial separation’ (also called a ‘legal separation’).
To do this, you would have to apply to the court for a ‘decree of separation’. This formally recognises the end of your relationship, but this doesn’t mean you’re free to remarry or enter another civil partnership, unless you go ahead with a divorce or dissolution.
But very few people use this because separation agreements are legally binding in Scotland.
Your next step
It’s worth reading our guide Your options for legal or financial advice on divorce or dissolution.
