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What are separation agreements? Do I need one?

May 20, 2021 | News

CAFCASS

What are separation agreements? Do I need one?

Separation agreements, also known as a deed of separation, are useful for couples who are separating and would like to agree on how property and finances will be shared once their relationship has ended. They are often used where separating couples have not decided to petition for divorce/dissolve a civil partnership. The written agreement can include various things such as:

  • Agreement on who takes outstanding debts and repayments
  • Who resides in the family home, is it sold?
  • Who pays the mortgage repayments and utility bills?
  • The division of savings and other finances
  • Child arrangements, including where the children live and with who they have contact
  • Who gets what? For example, jewellery, cars, art pieces, furniture, household goods etc.

The agreement is useful in a wide range of cases. It can help both married and unmarried couples. Couples who have cohabited for a long period of time will inevitably have been sharing finances, assets, property, and so separation begs the question as to who gets what. With the help of mediation and separation agreements, separating couples can come to amicable conclusions that eases the stress of relationship breakdown.

But is it legally binding?

In and of itself, the separation agreement is not a legally binding document. This is a common misconception. The agreement – or memorandum of understanding – that parties are given following mediation is very similar in that it is not a legally binding document from the outset. To make a separation agreement legally binding, you should get a consent order. This involves getting the agreement approved by a court and then the agreement will be enforceable. The court will look at the agreement and as long as a judge considers it to be fair and reasonable, it should be approved.

To ensure that your agreement will be approved by the court, you should have it drafted by a solicitor. You also must ensure that all parties have been honest in the disclosure of finances and that parties have received independent legal advice whilst making the agreement. It is very rare for the court to reject a consent order.

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So, what’s the point? Why don’t I just go to the court straight away?

This is a common question that our clients ask when making enquiries and the answer can be given in two main points:

  1. It saves you time and money. The bottom line is that using the courts from the outset can become very costly, very quickly and can take a very long time. Court fees, alongside solicitors’ costs can easily exceed £3,000. In more high-net-worth cases, fees are known to exceed £15,000.
  2. It keeps decision-making in your hands. If you can agree outside of the courts then what happens is your decision. At court, decision-making falls to the judge and decisions can be made that you do not necessarily agree with. Mediation allows parties to discuss the options and attempt to agree and compromise in a way that keeps everybody happy.

Ultimately, the separation agreement is a decision made by you that is far cheaper and quicker than using the courts from the outset.

We are married, but we do not want to divorce yet. How can we use the separation agreement?

Sometimes married couples jointly decide that they wish to separate. Unfortunately, relationships can break down and this can be a very stressful and saddening experience. Where married couples decide that their marriage is over, it can be difficult to decide on the best way to divorce. This is due to the fault-based divorce law in England & Wales, which essentially requires some form of blame to be given to a party in order for a divorce to be processed. With the prospect of the no-fault divorce reforms, however, this will hopefully be a far easier process in the future. However, for now, separating married couples must follow the current law. To petition for a divorce, it must be proved that the marriage has irretrievably broken down on the basis of 1 of 5 facts. These facts are:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Living apart for 2 years and the divorce is consented by both parties
  • Living apart for 5 years without the consent of both parties.

In more amicable separations, parties do not want to blame one another for the irretrievable breakdown and would rather wait for the 2-year fact where parties can consent to the divorce without a blame game. This is where separation agreements can be incredibly useful in the short term The agreement will enable you both to separate amicably and decide on future financial and child arrangements fairly. This can ease the divorce process, should you both choose to do it, once the 2-year separation mark is reached. The agreement itself can evidence to the court that the agreements were made intentionally when you both first separated. In these scenarios, separation agreements offer some sort certainty for separating couples as to how things are to look following relationship breakdown. The benefit of having one is that you can smoothen the separation process as best as possible and avoid high conflict situations. It is recommended that if you are looking to get a separation agreement you should seek legal advice and have a solicitor draft the agreement to ensure it is accurate.

We are not married, so can a separation agreement help us?

Separation agreements are not only used by married couples or people in a civil partnership. It is accepted that many couples now cohabit with one another for many years without ever getting married/civil partnered. Whilst cohabiting, it is expected that finances and assets with be shared and as such on separation these will need to be shared fairly. What is important to remember, however, is that in family law couples who are not married have far less protection and rights in relation to assets and this is no different here. The separation agreement, however, can assist separating non-married couples in deciding how to deal with their finances and assets in a way that offers some form of protection in a very similar way to married couples. The difference is, however, that due to not having to go through the divorce process and having no protection in family law, you will need to go through the civil courts to make the agreement enforceable through contract. This is becoming a popular method of dealing with separation where parties are unmarried.

How can I enforce the separation agreement? 

Married couples can enforce the agreement once it has been drafted into a consent order and you have applied to the courts for a financial order. This can be done during the divorce process. As explained, the separation agreement can influence the financial order as it represents the parties’ intentions at the time of separation. Again, this shows how separation agreements can be helpful in easing the divorce process. Non-married couples, as explained above, do not have protection in family law. As such, they should attempt to enforce the order through the small claims court for owed finances. Remember that separation agreements are not enforceable without court approval. You should seek legal advice to ensure that your separation agreement is legally enforceable.

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What can I include in the separation agreement?

You can include almost anything relating to the practicalities of separation in the agreement. The most common things to discuss are the division of assets and child arrangements, however you could also include:

  • Long term maintenance payments for the other party;
  • Valuable items;
  • An agreement to sell property and share the financial proceedings;
  • Agreement on the family pet.

Whatever is included in the separation agreement must follow three simples rules:

  1. The parties must have entered the agreement freely and voluntarily. There can be no coercion or undue pressure.
  2. All finances must be disclosed, there can be no hidden assets, otherwise the court will reject the agreement.
  3. The parties must both agree that the agreement is the end of the dispute and is a full and final agreement. This is to ensure that neither party will come back with a further claim at a later date.

How do we decide what to include on the agreement?

Understandably, during separation parties may have very different views as to how things are to be once they go their separate ways. One party may think they have a larger entitlement to a share in a property, for example. It can be very difficult to reach an agreement without support, especially if there is conflict. Both parties may agree that they need a separation agreement to ensure security for each of them, but they may very easily disagree on the specifics of this. There are many things that parties can do to support them in deciding what to include in the agreement and how this is to look. One of the best ways to do this is through using family mediation. Family mediation is a voluntary process where parties come together to put forward their individual needs and views, in order to reach an amicable compromised agreement that favours all involved. Where separating parties both agree to mediate, it can be incredibly useful for decisions to be made as to what is to be included in a separation agreement and is favoured by the courts. Other ways of getting support include:

  • Arbitration;
  • Using solicitors to negotiate;
  • Independent barrister reviews; and
  • Divorce negotiation.

Where there are ongoing disagreements, you should encourage one another to use one of the above to facilitate productive conversations to reach agreement. Of course, you will want to avoid incurring costs in reaching your agreement – there is no doubt that these processes can become very costly. Mediation is one of the cheaper options that remains effective. If you would like to enquire into how mediation can help you make a separation agreement, please get in touch.

What happens if my ex refuses to sign the separation agreement?

If the other part refuses to sign the agreement, there is unfortunately very little that you can do. In order for the document to be valid, a separation agreement must be entered into freely. As such, you cannot force the signing of the agreement. If the court saw that either party did not consent to the signing of the agreement, it is unlikely that the separation agreement will be made legally binding.

Conclusion

The breakdown of relationships is often a very sad and stressful experience which can come with many challenges. Separation agreements may be able to help you navigate the separation process and ensure that some safeguards are in place for your new family life. Mediation can certainly help in attempting to reach an agreement on the future. If you would like further information, please get in touch on 0113 468 9593.

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Frequently Asked Questions

Is a separation agreement legally binding?

Separation agreements are not legally binding until approved by the court. So long as your separation agreement is correctly drafted, has been entered into freely, and includes full financial disclosure, you should be able to take this to court and have it drafted into a consent order. The separation agreement will show to the court what your intentions were at the time of separation and can become a legally binding agreement that is enforceable.

Does it matter if we were married or unmarried?

Yes, if you were married that the separation agreement can be go through the family courts. It can form part of a financial order in divorce proceedings. On the other hand, If you are unmarried you cannot use the family court and instead would need to go through the civil courts to turn your separation agreement into a legally binding contract .

Can we write the separation agreement ourselves?

Yes, you can. However, it is not advisable. This is because in order for the separation agreement to be enforceable it must be drafted correctly. This is to ensure that it is fair and that it adheres to the 3 rules listed above. It is very easy to ensure this by using a solicitor to draft the agreement for you.

Are separation agreements the same as legal separation?

No. Legal separation is a method of formalising separation through the courts without having divorce. It is a favoured option where divorce is not appropriate, perhaps due to religious or cultural reasons. If you are considering legal separation, you should seek legal advice.

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