When couples marry or start living together, a consequence is often that their finances become linked. As a result, if a couple later decide to separate, there can be many financial issues which need to be resolved.
A deed of separation, otherwise known as a separation agreement, is a document that you can make when you want to stop living together as a couple. Separation agreements can be used by married or unmarried couples.
Separation is often the first step that married couples choose to take to avoid jumping too quickly into a divorce or dissolution. A separation agreement can set out the agreed terms during a trial separation or before arrangements are finalised as part of divorce or dissolution proceedings. They can also be used by couples who have been married for less than one year and so it is not yet possible to divorce.
If a couple separates after living together but are unmarried, they might also find a separation agreement useful to formalise the arrangements following the breakdown of that relationship. A separation agreement can be used to formally record what has been agreed in respect of the finances so there is a written record of this, just in case one person changes their mind later on.
A separation agreement is usually only appropriate where couples have already separated or intend to do so imminently. If a couple intends to remain living together but want an agreement to deal with their finances during their marriage or cohabiting relationship, and/or in the event of a future separation or divorce, then a postnuptial agreement or cohabitation agreement is likely to be more appropriate.
The agreement usually sets out the agreed financial arrangements during the period of separation and confirms how the couple's finances should be dealt with. Separation agreements can also be used to set out the arrangements you want to make for the children
A separation agreement is not legally binding in its own right. It is not a court order and the court is not usually involved in creating it. A separation agreement is more like a contract between separating couples, so can be challenged in a court in the same way as any contract can. However, whilst a court may not be bound by a separation agreement, in practice an agreement is likely to be upheld if it has been carefully negotiated and meets certain conditions. For example, a separation agreement should be properly drawn up with the benefit of independent legal advice for both parties, full financial disclosure and the terms need to be fair and reasonable.
If you want to enter into a separation agreement, the first step is to agree what areas you want the agreement to cover and what the terms will be. Ideally you will be able to agree this together, but if that is not possible you may decide to attend mediation or seek information and advice from a solicitor to try and help you resolve any issues. Once agreed, your solicitor will draft the separation agreement and be able to help amend and negotiate any details. Once ready, the agreement can be signed and witnessed.
For married couples, a separation agreement can be made into a consent order later during the divorce process. It is only possible to obtain a consent order, which will be approved by the court so long as thought fair and reasonable, as part of a divorce at which point the settlement will become legally binding.
If you need to resolve finances following a separation, whether you unmarried or married and do not wish to divorce at this stage, then a separation agreement may be the solution. Our solicitors in the Family team will be able to help and advise you whether it is a separation agreement that you require, or a postnuptial or cohabitation agreement you wish to discuss.