Does a Separation Agreement Need to be Legally Formalised?

If you are separating from your partner, you may want to consider putting a separation agreement in place. This can be useful whether you are married or cohabiting. We look at when this might be a good idea and what the document could contain.

When you initially separate, you may need some breathing space in which to decide how you want your life to look in the future. But the practicalities such as sharing a home, paying the mortgage and managing your finances will still need to be dealt with.

A separation agreement can help you and your partner decide how to handle matters while you consider your long-term options. 

Why use a separation agreement?

A separation agreement will formalise the situation and can help you avoid ongoing disputes over issues like paying bills. There are a wide range of decisions that you will need to make if you are splitting up permanently and thinking these through at this stage will mean that, should you divorce later on, a lot of the hard work has already been done.

In the short term, a separation agreement will give you some certainty, for example, with respect to your home and the bills. Without an agreement in place, you could find that arguments arise frequently each time bills become due.

You can opt to divorce in the future if you wish, at which time you will need to have a financial order made setting out how all of your finances will be dealt with. If you are both satisfied with the way in which the separation agreement is working, then the court can be asked to make a financial order on the same terms.

If you are not married, then a separation agreement will set out how you intend to divide your assets and deal with debts. You might not need an agreement if issues between you are straightforward, but if you have children, then the agreement can deal with issues relating to them.

If you are married and you decide that you do not want to divorce, at least for the foreseeable future, then a separation agreement will give you some financial security.

What is a separation agreement?

A correctly drafted and executed separation agreement is a contract but not does not have the same effect as a legally binding order. This means that while you are entitled to rely on its terms if the other party were to stray outside of the agreement, you would need to take steps to enforce this by claiming a breach of contract.

If you wish to rely on the agreement in the future, for example, when going through a divorce, you would need to satisfy the court that you both made full financial disclosure to each other before the document was drawn up and that you both had independent legal advice.

The court will also consider whether the agreement is fair to you both, whether either of your circumstances have changed substantially since the agreement was signed and whether you both have adequate financial provision. As always in dealing with a divorce, the interests of any children will be prioritised.

Contact us

If you would like to speak to one of our expert family lawyers, ring us on 0800 015 0340 or email us at info@chadwicklawrence.co.uk.