What is a Separation Agreement?

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A Separation Agreement is an official arrangement between a couple who have decided to separate. Many couples in England and Wales choose to create a Separation Agreement if they want to stop living together and put arrangements in place for things like finances, children and property. 

It can be used by both married and unmarried couples, but is most commonly used by those in marriages or civil partnerships who are looking to separate but haven’t yet finalised a divorce or dissolution.

A Separation Agreement sets out exactly what each party’s intentions are and gives separated couples time to consider their decision to split up. It can also lead to a more amicable divorce or separation later down the line.

For married couples, separation agreements are useful if you’re not thinking of getting a divorce immediately. But be advised, the Court will always look at your finances at the time of the divorce itself, not when you signed the agreement.

If your financial circumstances have stayed broadly similar to what they were when you signed the agreement, the Court will leave it undisturbed. But if they’ve changed significantly, for example, a large inheritance or lottery win, the Court may choose to look at it again.

Whatever your situation, we understand that a separation can be an emotional and difficult time. For free initial legal advice, get in touch with one of our Divorce Solicitors.

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What is Included in a Separation Agreement?

A Separation Agreement can cover a range of issues that need sorting out when you separate, such as:

  • Who pays the mortgage or rent, or household bills
  • Who stays living in the family home
  • What happens to the property if it’s sold
  • Childcare arrangements
  • Spousal maintenance
  • Who will take care of any pets
  • Who is responsible for clearing any debts

A Separation Agreement can be beneficial if you’ve decided to separate but haven’t yet decided to divorce or end your civil partnership.

For unmarried couples, it can be a useful way of splitting jointly-held assets, such as the property you own together. Also, if you’re tenants in a property, then you can use a Separation Agreement to agree on how you’ll split any remaining rent you owe.

Does a Separation Agreement Protect My Future Assets?

Not necessarily, as a Separation Agreement only sets out your living and financial arrangements if you’ve separated but not yet gone through the divorce or civil partnership dissolution.

An important thing to note is that the agreement won’t protect you from a financial claim made against you in the time between separation and divorce, as technically, the agreement isn’t recognised as a legally binding document by the Family Courts in England and Wales.

It’s better to think of the agreement as more of a contract between you and your ex-partner, which can be disputed until the Court approves the Consent Order during divorce proceedings, and formally ends your marriage or civil partnership.

Protecting Your Future Assets

To protect yourself from future financial claims made by your ex, you need a Consent Order. A Family and Divorce Solicitor can draft this for you and submit it to the Court for approval as part of the divorce itself. The Consent Order reflects the terms set out in a Separation Agreement, but unlike the Separation Agreement, it’s legally binding in England and Wales.

Once a Consent Order is approved by the Court, it becomes much harder for your ex to make any financial claims against you in the future. So if you go on to gain wealth for example, your ex will have a difficult time getting their hands on any of it.

Deed of Separation

Every divorce and separation will have different circumstances. Some people separate but don’t get divorced until the children have left home, which might be quite a few years later.

If a Deed of Separation is created, it helps support the evidential value of your agreement as it has been witnessed and signed in the presence of a Solicitor. It creates a sort of ‘action plan’ for when the time comes to get divorced and the Court can seal the agreement if a Consent Order is applied for. The Court will also look to see if both of you had legal advice and were honest with each other about your assets at the time.

If you’d like to know more about this, get in touch with one of our Divorce Solicitors.

Will a Consent Order Fully Protect My Future Assets? 

A Consent Order needs to be in place if you want to prevent your ex from making a future claim against you. This is called a ‘clean break’ and means that neither of you can make any form of financial claim against the other now or any time in the future, even upon death.

If you don’t have a clean break and you’re paying spousal maintenance, this can be affected by a significant change to your ex-partner’s circumstances. For example, if they lose their job and can’t afford to pay the mortgage payments, then they can apply to the Court for what’s known as a ‘Variation’. This means that the Court can change the arrangements in order to meet the needs of your ex-partner.

Your ex will have to prove to the Court that this change needs to happen, and it can sometimes be difficult to achieve.

Pension Sharing Order

If you have a Pension Sharing Order with your ex-partner, this can make things a little more complicated. A Pension Sharing Order is a legal document that sets out how your shared pension is going to be divided once you divorce or separate. But one issue with this is that it can’t be included in a Separation Agreement.

A Divorce Solicitor can advise you on your best course of action if you have a Pension Sharing Order.

How Simpson Millar Can Help You

If you’re going through a separation, then you should get legal advice from one of our Divorce Solicitors early on, as it’s the best way to know where you stand, and what might happen once divorce proceedings get underway.

Separation Agreements are a good way of setting out your intentions early on. They also give you clarity and certainty about your finances and living arrangements, as well as avoiding unnecessary Court hearings.

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