Separation Agreements

What a Separation Agreement Is and Who Uses It

A separation agreement is a contract between the two of you, not an order of the court, so it does not end the marriage or the civil partnership.

It is often called a deed of separation. For a married couple it is what section 34 of the Matrimonial Causes Act 1973 calls a maintenance agreement: an agreement in writing between spouses containing financial arrangements. Part 13 of Schedule 5 to the Civil Partnership Act 2004 does the same for civil partners.

A typical agreement deals with:

• who stays in the home, and who pays the mortgage or rent and the bills
• how joint accounts and savings are split, and who is responsible for each loan, credit card and overdraft
• payments between you while you live apart, and payments for a child
• where the children live and the time each of you spends with them, which a court can always revisit because a child's welfare is its paramount consideration
• how the terms are reviewed, and what happens if you reconcile

A divorce or dissolution application cannot be made until you have been married or in the civil partnership for over a year. In that first year the usual routes are a written agreement, judicial separation (a separation order for civil partners) or, where the marriage is void or voidable, annulment. Others prefer not to divorce at all, or are heading for a no-fault divorce or a civil partnership dissolution. If you lived together without marrying, see our pages on cohabitation agreements and separating as an unmarried couple.

How Much Weight the Agreement Carries

Section 34(1) of the Matrimonial Causes Act 1973 makes void any provision purporting to restrict a right to apply to a court for an order containing financial arrangements, while the rest of the financial arrangements stay binding on the parties unless they are void or unenforceable for another reason. So the terms bind the two of you, but neither of you can sign away the right to ask the court to decide: in Radmacher v Granatino [2010] UKSC 42 the Supreme Court confirmed that the parties cannot by agreement oust the jurisdiction of the court.

The real question is how much weight a court gives the agreement. The test in Radmacher is that the court should give effect to a nuptial agreement freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to it. The circumstances in which an agreement was made go to its weight: Radmacher applies the same principles whether or not a couple had already separated. An agreement made while you are still together is usually called a postnuptial agreement.

The court keeps its own duty when it is asked to make a financial order. Under section 25 it must consider all the circumstances, with first consideration given to the welfare of any child of the family under 18, and the factors listed in section 25(2), which include what each of you has and needs and the contributions each of you made. Where both of you are domiciled or resident in England and Wales, section 35 lets either of you ask the court to alter a subsisting agreement where circumstances have changed, or where it makes no proper provision for a child of the family.

What Only a Court Order Can Do

Sharing a pension takes a pension sharing order, which under section 24B of the Matrimonial Causes Act 1973 the court can make only on or after a divorce or nullity order, and which does not take effect until that order is final. An agreement can record what you intend, but get a cash equivalent value from each provider first. See our page on pensions on divorce.

Child maintenance has its own statutory scheme. Section 9 of the Child Support Act 1991 confirms that an agreement does not prevent either parent applying for a maintenance calculation and that a term restricting that right is void, so a figure in an agreement is a plan rather than the last word. Where child maintenance terms go into a court order, section 4(10) prevents an application for a calculation while that order has been in force for less than a year. An agreement made now does not. See our child maintenance page.

Enforcement is the other difference. If one of you stops doing what was agreed, the other has a contract claim rather than the enforcement powers that come with a financial order. GOV.UK uses legally binding to mean enforceable by the court: for that you need a consent order approved by a court, and a judge approves it only if they think it is fair. The powers under section 23 arise on making a divorce, nullity or judicial separation order, and the GOV.UK guidance confirms a consent order cannot be approved before the conditional order. See our pages on consent orders and financial settlements.

Disclosure, Pressure and Common Problems

The weight an agreement carries depends on how it was made, so preparation matters more than drafting. Each of you should give the other what a court would expect: income, capital, debts, property values and a cash equivalent value for every pension, with the documents behind the figures. Each of you should take advice from your own solicitor at a separate firm: we cannot advise both of you, because your interests on the money do not match.

Common defects that weaken an agreement:

• an agreement signed quickly, under pressure, or before either of you knew what the other had
• pensions left out, or valued from a guess rather than a scheme statement
• a clause saying neither of you will ever apply to the court, void under section 34(1)
• the family home dealt with on paper while the title and the mortgage stay as they were
• nothing said about a change in income, a child's changing needs, or getting back together

None of that makes an agreement worthless: it changes how persuasive it is if one of you later asks the court to decide. Where there has been domestic abuse a negotiated agreement may not be the right route, and our domestic abuse and injunctions page sets out the protective orders available. In immediate danger call 999, and the National Domestic Abuse Helpline is 0808 2000 247.

How the Separation Agreement Process Works

1. First meeting. We take the facts: when you separated, what you own and owe, and whether a divorce or dissolution is already in the picture.
2. Disclosure. Both of you set out income, capital, debts, property and pension values with documents, so the terms rest on figures you have each seen.
3. Negotiation. Terms are agreed through correspondence between solicitors, a round table meeting or mediation and out of court options.
4. Drafting. We put the terms into a deed, recording the disclosure, the advice each of you took, how spousal maintenance is paid and reviewed, and what happens if circumstances change.
5. Signing and putting it into effect. Each of you signs once your own solicitor has explained the terms, then the practical steps follow: standing orders set up, an account transferred, the outgoings switched.
6. Converting the terms. Once the divorce or dissolution reaches the conditional order, the financial terms go to the court for approval, and where the case allows that can include a clean break order. On a judicial separation the court can make financial orders, but not a pension sharing order or a clean break.

When Legal Advice Is Especially Important

Timing matters. An agreement holds as a contract from the day it is signed, but it cannot become an order until there is a court case for the order to sit in. Do not let the final order go through with the money unresolved. Remarriage narrows what you can ask for: under section 28(3) of the Matrimonial Causes Act 1973, a spouse who remarries or forms a civil partnership after the final order cannot then apply, by reference to that divorce, for financial provision or a property adjustment order. The sequence is on our conditional order and final order page, and court fees are listed on the GOV.UK court fees page.

Take advice early where a business, a pension of real value, an inherited asset, a property abroad or a debt in one name only is involved, or where the children's arrangements are unsettled. Those arrangements can be recorded in the agreement; where an order is needed, that is a child arrangements order. If your permission to stay in the UK depends on the relationship, get separate advice: see our family immigration pages.

If agreement proves impossible and you later apply to the court, Part 3 of the Family Procedure Rules expects you to have considered resolving matters out of court, and a mediation information and assessment meeting is usually required first unless an exemption in rule 3.8 applies.

How RakLAW Solicitors Can Help

RakLAW Solicitors is an SRA regulated firm (SRA number 8007405) at 42 Shad Thames, London SE1 2YD, a short walk from Tower Bridge in Southwark. Our family team drafts separation agreements and reviews agreements prepared elsewhere: we organise the disclosure, negotiate the terms, draft the deed and keep the route to a court order open rather than closing it off. We are privately funded and do not undertake legal aid work; our family law fees page explains how we charge, and how finances are split in divorce is a useful first read. Our divorce and separation pages cover the other routes.

Book a free 15-minute consultation on 0203 345 2000 or through our contact page.