Separation Agreements

As a Separation Agreement is a bespoke document, it can cover almost anything you want it to. The following are often included

• A record of the date of separation, and intention to divorce, when, on what grounds and who will be the applicant / petitioner
• what is to happen to pre-marital assets i.e. a property brought into the marriage, or any property inherited during the marriage or any income or assets derived from trusts or otherwise outside of the marriage
• what is to happen to money and property held jointly and saved during the marriage including pension funds
• how are debts going to be dealt with,
• whether ongoing maintenance is to be paid and, if so, for how long
• what events will require the separation agreement to be reviewed
• what arrangements are needed for any children of the family, in both financial and practical terms, such as where the children will live and when they will spend time their parents

To make the separation agreement as persuasive as possible in any future divorce or dissolution proceedings, a couple will need to disclose to each other their financial circumstances in full and take independent legal advice on the agreement and its effects.

The advantages of making a Separation Agreement include:

• If you do not believe in divorce or dissolution, a Separation Agreement allows you to live independently from your spouse without legally ending your relationship
• If you cannot divorce or get a dissolution because you have been married or in a civil partnership for less than a year, a Separation Agreement can be a temporary stopgap while you wait
• Your partner cannot file for divorce or dissolution claiming that you have deserted them while the Agreement is in place
• The Agreement will provide a clear date of when your relationship ended
• It clearly sets out you and your spouse’s financial expectations, reducing the risk of confusion and disagreement later
• They are flexible – Separation Agreements are easy to change so long as you and your spouse both agree
• If you later decide to divorce or dissolve your civil partnership, you can use the Agreement to form the basis of your financial settlement, saving you a lot of time and stress

A Separation Agreement is not binding on the court in the event of a later divorce or dissolution in the same way as a Court Order. That is because couples cannot contract out of the court’s jurisdiction to make orders for financial provision upon divorce or dissolution.

However, the existence of a Separation Agreement will be considered by the court and may have a persuasive or even decisive influence on the outcome of an application for financial remedy, depending on the precise circumstances surrounding the completion of the Agreement.

A separation agreement can have a draft consent order attached. This enables it to be turned into a final court order if you decide to proceed with a divorce or dissolution and circumstances have not significantly changed from those envisaged when the separation agreement was made.

When deciding what evidential weight should be placed on a Separation Agreement, the court will usually consider:

• Whether it was made in contemplation of and followed by an immediate separation the couple
• whether there was pressure by one party on the other party to enter into the agreement or one party exploited a dominant position to secure an advantage
• whether both parties were fully aware of all the relevant financial facts that existed within the marriage or civil partnership
• whether both parties had the benefit of, or at least the opportunity to obtain independent legal advice on the possible and actual financial and other implications of the agreement before signing it.
• whether the circumstances changed and whether such changes were overlooked or unforeseen at the time of the agreement

When it comes to dividing up your money, property and financial responsibilities there is a lot to think about. We will help you work through and make informed decisions around these issues. The goal is to enable you to build a secure life apart from your spouse or partner, whether the separation is intended to be short-term or long-term.

Negotiating finances upon separation can often be contentious. However, with our support and practical guidance, you can feel confident about coming to an agreement smoothly and efficiently.

The matters we can help you address include:

• Financial disclosure – the process of disclosing your financial resources and needs to your spouse and vice versa so that you can negotiate openly and honestly with one another and make informed decisions
• Decisions about the family home – for example, whether it should be sold or whether it would be appropriate for the children to continue living there with their primary caregiver
• How to divide other assets, such as:
  • Savings, Properties, Shares and investments, Personal belongings, such as cars and furniture
• How to arrange financial obligations, such as:
  • Mortgage payments, rent payments, household bills, debts

Child maintenance (also known as child support) can help parents contribute equally to their children’s upbringing even, where the children live primarily with one parent. It can cover everything from the children’s food and clothes to activities such as team sports, private school tuition fees and school trips.

Spousal maintenance (also known as spousal support or, if you are based outside the UK, alimony), are regular payments made by one spouse or civil partner to help the other partner maintain a suitable standard of living and, if possible, adjust to financial independence.

As part of your Separation Agreement negotiations, we can help you discuss child maintenance and spousal maintenance, including the amount and regularity of payments. Agreeing ongoing financial support can often be a difficult topic for separating couples. Obtaining practical guidance from a specialist who understands the emotional aspects can be invaluable.

Deciding on arrangements for children can be the most emotive part of separation for many couples. You must make firm decisions about where the children will live, how much time they will spend with each parent (and other family members such as grandparents), and key decisions about their upbringing such as where they should go to school.

Including an agreed Parenting Plan within your Separation Agreement can give you clarity and certainty about how you and your partner will approach parenting while living apart. You can then focus your undivided attention on your children and provide the emotional support they need throughout the separation process and beyond.

We have considerable expertise when it comes to advising parents on arrangements for children, including challenging questions about relocating children. Richard Sharp in particular is highly skilled at advising parents on international relocations.

For more general information, visit our Children & Parenting page.

If you later decide to legally end your relationship, our family lawyers can help you take the necessary steps to get a divorce or civil partnership dissolution.

For further information, visit our Divorce and Separation page.

We have years of experience advising clients about Separation Agreements openly and amicably, leading to agreements that work in the long-term. You can trust that we will use all of our skills to help you negotiate effective, positive solutions to any issues.

Richard Sharp is a qualified mediator who has 20 years of experience helping couples resolve a wide range of family law issues, including separation matters. A mediator can help you by providing a neutral voice to your discussions about finances and arrangements for children. Rather than making a judgment on your situation, the mediator works with you to facilitate your negotiations and help you avoid conflict.

Collaborative law is a constructive process that involves you and your partner sitting down together with your respective lawyers to discuss your Separation Agreement. You can also involve other professionals such as financial advisors, making the process popular with couples who have complex issues to sort out. Our expert collaborative lawyers can provide practical advice and guide you through the process, giving you the best possible chance of achieving a positive outcome.

While alternative dispute resolution works for many couples, it may be the case that you simply cannot come to an agreement with your partner. If so, we can provide detailed advice about seeking a Judicial Separation. This is where a family judge makes a decision about the terms of your separation. If this option is right for you, we will take all necessary steps to represent your best interests and seek the outcome you need.