Separation Agreements and Deeds of Separation
When a relationship ends, whether you are married, in a civil partnership, or living together as an unmarried couple, there are often practical and financial matters that need to be resolved. A separation agreement, sometimes called a deed of separation, provides a formal way to record what you and your partner have agreed without necessarily involving the courts.
At Heritage Park Family Law we can advise you on whether a separation agreement is appropriate for your circumstances, help you understand what it should contain, and ensure it is drafted properly to give you the best protection possible.
A separation agreement is a written document that sets out how you and your partner intend to divide your assets, handle your financial responsibilities, and make arrangements for any children following the breakdown of your relationship. It is essentially a contract between you both, recording the terms you have agreed upon. A post-nuptial agreement (an agreement made between married couples) is more commonly made where couples are not intending to divorce but want to set out agreed financial arrangements if they were to divorce in the future but if you are married a separation agreement is a form of post-nuptial agreement and as such it can be highly influential on a divorce court with regard to financial issues.
Separation agreements can be used by married couples, civil partners, and cohabiting couples who are not married. The document is tailored to your specific circumstances and can address matters such as property, savings, debts, maintenance payments, and arrangements for children.
It is important to understand that a separation agreement is not the same as ending your marriage or civil partnership. If you are married or in a civil partnership, you remain legally married or partnered until you obtain a divorce or dissolution and it is important that you obtain a financial order so that any agreements about financial issues are made enforceable and legally binding. The separation agreement records your arrangements during the period of separation and sets out the terms you wish to be included in your financial order when you divorce or your civil partnership is dissolved.
There are several situations where a separation agreement can be particularly valuable.
In England and Wales, you must have been married for at least one year before you can apply for a divorce. If your marriage has broken down within that first year, a separation agreement allows you to formalise your arrangements until you become eligible to divorce.
Some couples choose to separate without divorcing straight away. This might be for religious reasons, because you want time to consider whether reconciliation is possible, or simply because you are not ready to take that final step. A separation agreement provides clarity and security during this period and is particularly important if you intend to take steps to separate financially by selling or transferring the family home for example, before you are legally divorced.
Couples who are close to or in retirement sometimes choose to remain legally married to preserve certain pension rights, insurance benefits, or other financial arrangements. A separation agreement can formalise your living and financial arrangements whilst you remain married.
Cohabiting couples who are not married have fewer automatic legal protections than married couples. A separation agreement can be particularly important to record how you intend to divide jointly owned property, deal with shared debts, and manage any ongoing financial arrangements.
Reaching agreement between yourselves, with appropriate legal advice, is typically quicker, less stressful, and more cost-effective than contested court proceedings. A separation agreement provides a framework for that agreement.
A separation agreement can cover a wide range of matters, depending on your circumstances. The document should be comprehensive enough to address all relevant issues between you.
One of the most significant matters for most separating couples is what happens to the family home. Your separation agreement might address whether one of you will remain living there whilst the other moves out, whether the property will be sold and the proceeds divided, whether one of you will buy out the other’s share, or whether the sale will be delayed until a future date, such as when children complete their education.
The agreement can record how you will divide savings, investments, and other financial assets. This might involve one party transferring funds to the other, closing joint accounts and dividing the proceeds, or agreeing that certain assets will remain with one party.
Joint debts such as mortgages, loans, or credit cards need to be addressed. The agreement can specify who will be responsible for paying particular debts, though it is important to understand that any agreement between yourselves does not bind your creditors. If a debt is in joint names, the lender can still pursue either of you for the full amount, but the agreement could state that if this should happen you can seek recompense from the other person.
If there is a disparity in income between you, the agreement might include provision for one party to pay maintenance to the other. This can be expressed as a lump sum payment, regular periodic payments, or a combination of both. The agreement should specify how much will be paid, when payments will be made, and in what circumstances they might change or end.
Whilst child maintenance can be included in a separation agreement, child maintenance falls under the jurisdiction of the Child Maintenance Service and so if one of you makes an application to the Child Maintenance Service their assessment would ‘override’ any agreement between you. Nevertheless, including agreed child maintenance arrangements in your separation agreement demonstrates your shared intentions and can be helpful context for any future discussions.
The agreement can record your arrangements for where children will live and how they will spend time with each parent. Many parents choose to create a separate parenting plan that sits alongside the separation agreement although it is worth noting the court always retains jurisdiction to make orders it considers to be in the children’s best interests.
Whilst often overlooked, disputes about personal belongings can be surprisingly acrimonious. Your agreement can specify who will keep particular items and set timescales for collection of belongings.
This is one of the most common questions about separation agreements, and the answer requires some nuance.
A separation agreement is not automatically legally binding in the same way that a court order would be. It is a contract between you and your partner, and like any contract, it could potentially be challenged.
However, if you later divorce or dissolve your civil partnership and one of you applies to the court for financial orders, the court will give significant weight to a properly prepared separation agreement. Whilst the court is not bound to follow it, judges are generally reluctant to depart from an agreement that has been entered into properly, particularly if:
The landmark case of Radmacher v Granatino [2010] established that the courts should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would not be appropriate to hold the parties to their agreement. Whilst this case concerned a pre-nuptial agreement, the principles apply equally to separation agreements between married couples.
For unmarried couples, a separation agreement operates purely as a contract. If one party does not honour the terms, the other would need to pursue enforcement through the civil courts rather than the family courts.
Whilst no separation agreement can guarantee a particular outcome if matters later come before a court, there are steps you can take to maximise the likelihood that your agreement will be respected.
Both parties should provide complete and honest disclosure of their financial circumstances, including income, assets, debts, and any other relevant financial information. An agreement made without full disclosure is vulnerable to challenge on the basis that one party did not understand what they were agreeing to.
Both parties would ideally obtain independent legal advice before signing the agreement. This demonstrates that each person understood the terms and their implications. It is not generally appropriate for one solicitor to advise both parties, as this creates a potential conflict of interest.
The agreement must be entered into freely, without pressure, duress, or undue influence from the other party. If one person felt coerced into signing, the agreement may not be upheld.
Having the agreement professionally drafted by a family law solicitor or barrister ensures that it is properly structured, uses appropriate legal language, and covers all necessary matters. Whilst template agreements are available online, they may not adequately address your specific circumstances and are less likely to be treated as authoritative by a court.
The agreement should be signed by both parties and their signatures should be witnessed. This formality reinforces the seriousness of the document.
If circumstances change significantly after the agreement is made, it may no longer be appropriate. For example, if one party’s income increases or decreases substantially, or if there are changes affecting the children, the original terms might need to be revisited.
For married couples and civil partners, a separation agreement can be converted into a consent order when you eventually divorce or dissolve your civil partnership. A consent order is a court order that makes your agreement legally binding and enforceable.
To obtain a consent order, you will need to have the terms of your separation agreement drafted as a financial remedy order. You will need to apply to the court using the appropriate forms, including Form A (notice of application for a financial order) and Form D81 (statement of information). The court fee for this application is currently £60.
The court will review your proposed consent order to check that it appears to be a reasonable outcome. There is usually no hearing; a judge will consider the paperwork and approve the order if satisfied. If the judge has concerns about whether the order is appropriate, they may ask for clarification or further information or request a hearing.
The consent order can only take effect after you have obtained your conditional order (formerly decree nisi) in divorce proceedings, and it becomes final when you receive your final order (formerly decree absolute).
It is generally advisable to obtain your consent order before your final order, particularly if pension sharing is involved, as finalising the divorce without a financial order in place can have unintended consequences.
Creating a separation agreement typically involves several stages.
You and your partner will need to discuss what you want the agreement to cover and try to reach agreement on the key terms. If you are finding it difficult to agree, mediation can help you work through the issues with the assistance of a neutral third party.
Both of you should gather information about your financial circumstances and share this with each other. This might include bank statements, pension valuations, property valuations, and details of debts.
Each of you should ideally take independent legal advice on the proposed terms. Your legal adviser can explain your rights, identify any issues with the proposed agreement, and advise whether the terms represent an appropriate outcome for you.
Once the terms are agreed in principle, the agreement should be professionally drafted. This ensures that the document is comprehensive, legally sound, and clearly expresses what you have agreed.
Both parties should review the draft carefully before signing. Once you are both satisfied, the agreement can be signed and witnessed.
A separation agreement is a contract between you and your partner recording your arrangements following separation. It does not end your marriage or civil partnership. A divorce is a legal process that formally ends your marriage. If you are married, you will remain legally married until a divorce is finalised, even if you have a separation agreement in place.
Yes. In fact, this is one of the common reasons people choose a separation agreement. You cannot apply for divorce until you have been married for at least one year, but you can enter into a separation agreement at any time. The agreement can then be converted into a consent order once you are able to divorce.
The cost will depend on the complexity of your circumstances and how much work is required. A straightforward separation agreement where you have already agreed all the terms will cost less than a more complex matter requiring extensive negotiation. We can provide you with a clear indication of costs after understanding your situation during the initial discussion.
A separation agreement does not have an expiry date. It remains in effect until it is superseded by a court order, such as a consent order made on divorce, or until you and your partner agree to vary its terms. However, the longer the time since the agreement was made, and the more circumstances have changed, the less weight a court might give to it if matters later become disputed.
Yes. A separation agreement requires the agreement of both parties. If your partner refuses to engage with the process, you cannot force them to sign. In those circumstances, if you are married and wish to resolve financial matters, you may need to issue divorce proceedings and apply to the court for financial orders.
Whilst there is no legal requirement to have a separation agreement, it can be particularly valuable for unmarried couples. Cohabiting partners have fewer automatic legal protections than married couples, so having a clear written record of your agreed arrangements can help avoid disputes and provide certainty for both parties.
If circumstances change significantly, it may be appropriate to revisit and vary the terms of your separation agreement. Both parties would need to agree to any changes. If you cannot agree, and you are married, you could apply to the court as part of divorce proceedings for orders that reflect the changed circumstances.
You can include arrangements for children, such as where they will live and how they will spend time with each parent. However, it is important to understand that these arrangements are not legally binding, as the court always has jurisdiction to make orders it considers to be in the children’s best interests. Many parents choose to record child arrangements in a separate parenting plan.
Whilst it might be tempting to use a template separation agreement found online, there are significant advantages to instructing a specialist family lawyer.
A specialist can ensure that your agreement addresses all relevant matters and is tailored to your specific circumstances. They can identify potential issues you might not have considered and advise on how to structure the agreement to best protect your interests. They can also ensure that the agreement is drafted in a way that maximises its persuasive weight if matters later come before a court.
Perhaps most importantly, having proper legal advice gives you peace of mind that you understand what you are agreeing to and that the terms represent an appropriate outcome for your situation.
All our lawyers are highly experienced specialist family lawyer and so can advise you on whether a separation agreement is appropriate for your circumstances, explain your legal position, and help you understand what outcome might be reasonable. If you have already reached agreement with your partner we can draft a separation agreement that properly reflects your intentions and gives you the best possible protection.
If you need to convert your separation agreement into a consent order as part of divorce proceedings we can assist with that process too.
We offer a fixed fee initial discussion at a reduced rate of £250.00 plus vat. This is a meeting of up to 1 hour by telephone, video call or face to face at our offices so you can explain your situation and find out how we might be able to help, with no obligation to proceed further. Where possible, we offer fixed fee services so you know from the outset what the costs will be.
To arrange an initial discussion, please contact us on 01525 406030 or fill in our enquiry form today.
