As the name suggests, a separation agreement is a formal agreement intended to address the most urgent financial and practical issues during a separation. Typically, these will include:
- Who will pay the rent or mortgage.
- Who will pay the biggest, most important household bills – e.g. gas, electricity, water.
- Whether maintenance will be paid by the wealthier partner to the more dependent one during the separation.
- Who will continue to live in the couple’s home during the separation and who will move out.
- How other financial arrangements will be handled – for example loan repayments or car payments.
- Who the children will live with for the duration and how often they will see the other parent.
- Who will pay the fees if they attend a private school.
If the couple drawing up the separation agreement have already decided to separate permanently and go through the divorce or dissolution process, the document can also address more long-term considerations, for example:
- What will happen to any long-term investments or savings.
- What will happen to the couple’s home: will it be sold and if so, how will the proceeds be divided?
- What will happen to any jointly owned possessions or furnishings.
- Future arrangements for the children.
Separation agreements are inherently flexible and there is no fixed list of items that must be included. The issues addressed can and should vary according to the personal circumstances of each couple.
But what actually is a separation agreement?
If a married couple – or a couple in a civil partnership – decide to end their relationship, the divorce or dissolution process will address all the practical and financial issues that follow from that decision: for example, how the money and assets will be shared out, who the children will live with, who will assume responsibility for debts and loans, and what will be done with couple’s home. But what if the couple have only decided on a trial separation, without having committed to a permanent split? Then a number of important, practical issues – such as who will pay the rent or mortgage during the separation period – could be left in limbo. It is precisely this situation that separation agreements are principally intended to address. Separation agreements are an effective way to bring clarity and certainty to an often very uncertain period.
They can also be useful if a couple have already decided on a permanent end to their relationship but need to address practical concerns before the divorce or dissolution process begins. They will provide the family courts with clear evidence that the relationship had broken down by a particular date, and the agreements set out in the document often form the basis for the subsequent, formal financial settlement. Much of the groundwork will already have been laid, simplifying and accelerating the divorce or dissolution process.
Any changes to a separation agreement will require the consent of both parties.
Separation agreements are not legally binding, however, so the family courts are not guaranteed to honour them and either party can dispute the agreements reached, at a later date. But in most cases, they will be accepted as long as the family court is confident that agreement is fair, reasonable in the circumstances, and also based on a full disclosure of each partner’s financial situation.
You do not necessarily need a lawyer to draw up a separation agreement, but it is advisable. Professional legal advice will help to ensure yours is as comprehensive and effective as possible, addressing all the key issues arising from your particular circumstances.
