The Ultimate Guide to a Separation Agreement | Mediate UK (2024)

There are many scenarios where it can be beneficial. For example, if you've been living with a partner for a while, it is probably the case that you've been sharing many things, such as the home you live in, a car, a joint savings account, or more.

You've also been sharing responsibilities, such as bill payments, mortgage or rent payments, and parental responsibilities if you have children together. It's also possible you've made plans to share things in the future, su ch as potential income or responsibilities such as the cost of schooling your children.

A separation agreement will formally address what is going to be done about these shared assets and responsibilities, and it will also determine the steps that must be taken in the process, such as selling your property to split the revenue, among other arrangements.

Scenario 1: You're Married and You're Separating

If you're married but you don't want a divorce or are not able to begin the legal proceedings, separating and using a separation agreement is a good option for you because it can work as an alternative to, or as a precursor to, getting a divorce.

In England and Wales, you ca't apply for a divorce unless you've been married for at least one year. Even when you can apply for divorce, you still need to prove at least one of the established grounds for divorce, (until the new no-fault divorce law comes into effect). These grounds include:

• Adultery
• Unreasonable behavior
• Partner desertion
• You've been living apart for at least 2 years if you've agreed on divorcing
• You've been living apart for at least 5 years if one of you has't agreed to divorce

If you can't prove any of these grounds for divorce, a separation agreement will allow you to separate and divide your assets fairly. Another advantage about such an agreement is that it allows for the possibility of reconciliation. Some people do not want to divorce on religious grounds, or are in or nearing retirement and want to remain married to keep certain pension rights or health and insurance benefits. It is a good idea to get a more formal separation agreement in such circ*mstances if you are remaining married.

However, when reconciliation is not possible and you decide to continue with the divorce, the separation agreement will provide proof of the date of separation and you can use it to show the court your intentions when you separated and later invite them to accept it as a legally binding consent order.

It is important to note, the court can disagree with what you decided in the separation agreement or overturn it entirely because it’s not legally binding under family law. But in most cases, the court will uphold the agreement if it’s deemed fair to everyone, including the children of the marriage, and if nothing has substantially changed since it was issued that would make it inappropriate.

Having access to good legal advice and a solicitor drafted separation agreement will also make it more likely that the court will accept your separation agreement.

Scenario 2: You’re Not Married but You’re Separating

Couples who are not married can also benefit from a separation agreement, to split the assets and responsibilities fairly. For example, if you have a fixed-term tenancy together, the agreement can help you determine how to split the remaining rent you owe.

The separation agreement in such cases forms a contract but it is not legally binding under family law. To enforce it you would have to go through the civil court, rather than family courts.

The separation can lay out how you are going to divide up any joint assets you have and if there are any ongoing future payments agreed, how they will work.

Even when the separation is friendly, it can be important to have a separation agreement. Personal and financial circ*mstances can change unexpectedly; people move on and find new partners, or their financial requirements change, so it’s a good idea to formalise the separation to prevent any conflict or misunderstanding in the future.

The first thing that's outlined in a separation agreement is the relationship background, which includes your names, how long you have been living together, and if there are any children - whether of the relationship or outside of it. The agreement will also include the actual date of separation.

If the agreement is going to be taken seriously the judiciary, it needs to clearly state the basic principles under which it's being made. You should acknowledge that the document is a reflection of your intentions and there are 3 basic principles that allow the separation agreement to be upheld in court.

These are:

1. You're entering the agreement of your own free will. This means no one should be forced or feel pressured to agree to the terms, otherwise, it wouldn't be an agreement.
2. Both parties need to make a full financial disclosure of their assets and responsibilities. This is essential to a fair agreement.
3. This is the full and final agreement. Both parties agree that the separation agreement includes everything that's relevant and they won't be making any further claims once it's done.

This will depend on whether you are married or co-habiting. To enforce a separation if you are married you would normally apply to the court for a financial order, using a Form A.

If you were not married you can apply to enforce the order through the small claims court initially, as it would fall under civil law (as a contract) and not family law.

You can lay out the arrangements for any family pet in your separation agreement and include who will pay for the insurance, vet bills, and other expenses. And of course, the agreed arrangements for you both to care for them in the future.

Read more about this in our blog - Who Keeps the pet in a divorce or Separation?

You can try the following steps to reach an agreement:

• Work together to finalise your agreement. If you are able to reach an agreement, you should both take independent legal advice on the agreement reached as this will help if there are issues later down the line.
• Use Divorce Negotiation. If you have an agreement in principle, you can have it sense checked by a divorce negotiator and then have a solicitor to draft your separation agreement at a fixed fee.
• You can reach an agreement through family mediation. The mediator will take you through a tired and trusted process to help you reach an agreement. Any agreement reached can be drafted into a separation agreement by our solicitor for a fixed fee.
• You can ask for an independent barrister review if you are struggling to agree between yourselves
• You can ask your solicitors to negotiate on your behalf
• You can go to arbitration or court

You cannot force someone to sign a separation agreement and if they did so it would make it difficult for a court to uphold what was in the agreement. If you cannot agree, then you can try family mediation to resolve the issue.

Otherwise, if you are married you can start the divorce process and apply for a financial order. If contested, this can get very expensive and you will normally need to show the court you have at least considered family mediation by way of a MIAM.

If you are not married and separating and your ex does not want to sign a separation agreement, there is not much you can do to force it through You can apply to court under the Trust of Land and Appointment of Trustees Act 1996 - often referred to as TOLATA. In some cases you can apply for support for the children under Schedule One of the Children Act 1991. But we always recommend taking good legal advice prior to exploring either of these options.