Separation Agreements can be used to regulate personal and financial affairs to provide reassurance and clarity after a relationship breakdown. Prior to the introduction of “no fault divorce” on 6th April 2022, Separation Agreements were a popular way of avoiding blame upon divorce. However, since no fault divorce was implemented, it has led many to ask whether such agreements remain useful. Civil partners and unmarried couples can also enter into Separation Agreements.

What is a Separation Agreement?

A Separation Agreement is a contract (usually in the form of a Deed) reached between separating couples defining how their assets and responsibilities are to be divided and, if they wish, how arrangements for their children are to be organised. It is an agreement made outside of Court. Whilst these agreements are not limited to married couples, this will be the focus of the article.

When should I consider a Separation Agreement?

  • Chance of reconciliation:

If you feel there is a chance of reconciliation, a Separation Agreement will allow you to maintain the marriage’s legal status whilst leaving the door open for initiating the divorce process in the future.

  • You have been married for less than a year:

A Separation Agreement may be a useful option where you have been married for less than a year. At present, you must be married for a year from the date of your marriage to get a divorce. Once the year elapses, already having a Separation Agreement in place may reduce the likelihood of any hostility arising during divorce proceedings.

  • When you are not ready to divorce:

Understandably, the divorce process can be highly stressful. If you are not ready to divorce, you may wish to simply document how your finances will be split/managed without formally starting legal proceedings.

Is a Separation Agreement legally binding?

One of the most common questions about Separation Agreements is as to their validity. A Separation Agreement is not guaranteed to bind the Family Court on divorce/dissolution, but it can be highly persuasive if drafted correctly. In Family Court proceedings, you need to either have a Consent Order, also known as a Financial Remedy Order (for finances on divorce) or a Child Arrangements Order (for parenting on divorce or separation) to have certainty over the finality and enforceability of the agreed terms.

However, like any other contract, Separation Agreements are private contracts and can therefore be legally enforceable under certain circumstances.

Notably, the Separation Agreement must have been entered:

  1. With the intention of both parties to enter into a legally binding contract;
  2. At the parties’ own free will.

Whilst it is not strictly necessary, it is important (and the Court will expect) that each party has given full financial disclosure should you wish to rely on the Separation Agreement to form the basis of a Financial Remedy Order in the future. The importance a Court might give to the Agreement may also be influenced by whether all parties had the chance to take legal advice and fully understood the terms.

Under what circumstances would the Court not uphold a Separation Agreement?

This is likely to occur where the agreed terms are seen to be unjust; if a considerable amount of time has since passed, which may have affected the enforceability of the terms; and if circumstances change (either financially or personally), which in turn affects the overall fairness of the Agreement, such as loss of employment or serious illness.

Even with the aforementioned conditions having been satisfied, a Separation Agreement, if you later decide to divorce, can still be challenged/varied by the Court. Whereas in the alternative, following a divorce when in financial proceedings, the Court approves a draft order that cannot be amended without further Court involvement.

How can Gordons Partnership help you?

Please contact one of our team of family solicitors for advice. You can call 01483 451 900 or 020 7421 9421 or email sols@gordonsols.co.uk.

About the Author

Martin Philip

Martin Philip

Trainee Solicitor