What should a separation agreement include?

A well-drafted separation agreement can play a vital role in establishing clarity and reducing conflict during the breakdown of a relationship. Although these agreements are not automatically legally binding, if properly constructed, they may carry significant legal weight and be upheld by the courts.

But what actually is a separation agreement?

If a married couple – or a couple in a civil partnership – decides 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 has 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 has already decided on a permanent end to their relationship but needs 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.

However, separation agreements are not legally binding, so the family courts are not guaranteed to honour them. This means that either party can dispute the agreement reached at a later date. That said, 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 party’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

What is in a separation agreement?

Typically, separation agreements include:

• The full names and addresses of both parties involved. It should specify the exact date of separation—this is particularly important if the agreement may later be referred to in divorce proceedings or for benefits and financial claims.
• A clause confirming that both parties agree to live separately from the separation date supports the validity of the document and affirms the parties mutual understanding of their relationship status.
• A fundamental element of any separation agreement is full and frank financial disclosure. Each party should provide a comprehensive statement of their financial position, including assets, debts, income, and regular expenditures.

Disclosed items should include:

• Cash and savings
• Property/property ownership
• Investments, pensions, and shares
• Vehicles and valuable personal items
• Debts, including joint liabilities and individual obligations

Inclusion of a clause confirming that both parties believe all relevant information has been disclosed helps to protect against future disputes and bolsters the agreement’s enforceability.

• Who will pay the rent or mortgage – this includes who will live in the property, whether the property will be sold, and how any sale proceeds will be divided.

Where one party remains in the home, the agreement should address:

• Who pays the mortgage and ongoing costs
• Any agreed time limits on residence
• Transfer of ownership (if applicable)
• Mechanisms for future sale or buy-out

If a sale is agreed, the document should state the minimum acceptable sale price, how estate agent and solicitor fees will be paid, and how profits or deficits will be shared.

• Who will pay the biggest, most important household bills. Responsibility for paying household bills should be clearly allocated. This includes:
• Mortgage or rent
• Council tax
• Gas, electricity, water, and internet
• Insurance premiums (home, car, life, etc.)
• Repairs and maintenance

This prevents future disagreements over shared or overlapping financial obligations.

• The agreement should clearly outline how jointly and individually held assets will be divided. This includes items such as:
• Furniture and household contents
• Vehicles
• Jewellery, artwork, and collectables
• Business interests and equipment

If pension rights are relevant, the agreement may specify whether one party will offset against other assets or whether the matter will be addressed in future divorce proceedings with a pension-sharing or attachment order.

• Identifying and assigning responsibility for debts is essential. The agreement should state:
• Which debts are joint and which are individual
• Who will be responsible for repaying each debt
• How payments will be made
• What happens if a party defaults on their obligations

This clause should also outline any indemnities—for example, if one party agrees to pay a joint loan, they may agree to indemnify the other against any future claims by the creditor.

• Whether maintenance will be paid by the wealthier partner to the more dependent one during the separation. This section should cover:
• The amount and frequency of payments
• How long payments will continue
• The method of payment
• Circumstances in which payments will be reviewed, adjusted, or cease (e.g., remarriage, death, or significant income change)

If no maintenance is to be paid, this should be clearly stated to avoid future misunderstandings.

• While separation agreements are not binding in matters concerning children, they can still help by setting clear expectations.

The agreement should include:

• Where the children will live (residence arrangements)
• Contact schedules, including weekends, holidays, and special occasions
• Decision-making responsibilities, particularly relating to education, health, and religion
• Who will pay the fees if they attend a private school
• Maintenance payments, including the amount, frequency, and method of payment

It should be made clear that these arrangements are not intended to prevent either party from applying to the court for a Child Arrangements Order under the Children Act 1989.

• A valuable clause to include is a mechanism for resolving future disputes. This may require parties to attempt mediation or negotiation before approaching the court. A typical clause might state that both parties agree to attend family mediation before initiating legal proceedings in relation to the agreement. Such provisions help maintain cooperation and reduce legal costs.
• If you do not intend to get divorced within the foreseeable future, the agreement should include a clause allowing for periodic review. Circumstances can change—such as income, new relationships, or changes in children’s needs—so the agreement should allow for adjustments by mutual consent. It is important to note that, once agreed, any changes to a separation agreement will require the consent of both parties.

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.

Legal advice and representation

To improve enforceability, each party should receive independent legal advice before signing. The agreement should state:

• That each party has either obtained or waived the right to legal advice
• That each party understands the terms and their legal implications
• That the agreement was entered into freely and voluntarily, without coercion

A solicitor’s letter confirming independent legal advice is often appended to the agreement.

Execution as a Deed

For a separation agreement to carry legal weight, it should be executed as a deed. This means:

• It must be signed by both parties
• Each signature must be witnessed by an independent adult
• The document must express the intention to be a deed (e.g., using the phrase “signed as a deed and delivered”)

Proper execution will strengthen the agreement’s enforceability as a contract.

Conversion into a consent order

A well-drafted separation agreement often anticipates eventual divorce proceedings. The document may state that, upon the commencement of divorce, its terms will be submitted to the court and incorporated into a consent order. This process makes the terms legally binding and enforceable, with the court’s oversight.

Enforceability under the law

Although separation agreements are not court orders, they can be upheld if they meet certain legal standards. Courts are more likely to enforce them if:

• Both parties provided full financial disclosure
• Each party received independent legal advice
• The terms are fair and reasonable
• The agreement was not made under duress or undue influence

Judicial separation

In some cases, couples may also apply for judicial separation through the court. This legal status confirms the end of cohabitation without ending the marriage or civil partnership. If this route is taken, the separation agreement may be referenced or reflected in the court order.

As we have seen, a comprehensive separation agreement should address every major financial, legal, and practical aspect of a couple’s separation. Though not automatically legally binding, careful drafting, supported by full disclosure, independent legal advice, and proper execution, can ensure the agreement holds up in future proceedings and provides long-term clarity for both parties. Whether used as a standalone document or as a precursor to a formal Consent Order, it serves as an essential step in a respectful and organised separation process.