16th March 2021

If you are coming out of a relationship, whether you were cohabiting, married or in a civil partnership, you may ask if you need to formalise your separation.

A Separation Agreement is a formal contract that can be agreed upon between you and your former partner to determine the division of your financial assets and responsibilities.

Even if your separation is amicable it’s important to seek legal advice on your financial position as complications can arise in the future Whilst you are not legally required to obtain a separation agreement it will save you a lot of money and stress in the long run.

It also provides you both with some degree of certainty on where you stand going forward.

Separation after marriage or a civil partnership

If you plan on getting a divorce or dissolution of your civil partnership, a Separation Agreement can be used as an interim step recording the date when you started living apart and the agreed finances arrangements

A Separation Agreement pre-divorce can save thousands of pounds in dealing with your matrimonial finances through contested court proceedings at a future date

The advantages of a separation agreement

A Separation Agreement has many advantages. It can deal with finances and property that you have now as well as assets you may acquire in the future.

It’s advantageous even if you have little or no capital at the time of your separation

Although a Separation Agreement entered into after separation and pre-divorce is not enforceable it’s likely to be upheld by the court if the terms are fair and reasonable, both parties have exchanged financial disclosure and have taken legal advice

Agreeing on something between you and committing it to paper signed by you both is not advisable if you are seeking some finality going forward as it is less likely the court will uphold your agreement

There have been several cases in the past few years where a financial claim was made by a former spouse or civil partner even decades after separation was there is no limitation period.

Your Agreement can be drafted wide enough to include practical and financial arrangements and responsibilities you will each take in relation to the care of your children

Separation and cohabiting couples

If you have been cohabiting with your partner without getting married or entering a civil partnership, then there is no set piece of legislation that deals with separation and you may be surprised to know you have no automatic rights

A Separation Agreement will provide you with certainty and enable you to move forward in life confidently

Cohabiting partners who have joint assets and liabilities should seek to reach an agreement and have a Separation Agreement drawn up recording the division of the assets agreed upon

Before entering into a Separation Agreement, it will be necessary for you both to make full disclosure of your assets and liabilities to each other

If an agreement can’t be reached it may be necessary for you to make a civil claim in court against your former partner.

The most common claim is in relation to the family home whether it is in joint names or in one partner's name

It is always important to obtain early legal advice If you have been cohabiting, have no children together or no shared assets you may not require any formal Separation Agreement. However, always seek preliminary legal advice

Children and Separation Agreements

The day-to-day caring arrangements for children can be included within the terms of your Separation Agreement. Also, issues such as holiday contact, paying for school trips, even what happens at Christmas and other religious holidays as well as on Mother's or Father's Day

Your Separation Agreement can also cover child maintenance. However, if an agreement cannot be reached between you then an application should be made to Child Maintenance Services

You should be aware that if Child Maintenance Services must collect payments, it will cost more. If you are the paying parent, your payment will increase by 20%. If you are the receiving parent, you will receive 4% less. It is, therefore, better to reach an agreement between you if at all possible

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances

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