Separation Agreements

Separation Agreements are not technically legally binding, but they are a contract so they can still be challenged in the event of a later divorce or dissolution. Parties to a marriage or civil partnership cannot exclude the court’s powers to make orders for financial provision upon divorce or dissolution and the court is entitled to overrule an agreement between parties in certain circumstances.

Nevertheless, the existence of a Separation Agreement will be one of the factors that the court considers and it often gives weight to these in determining the outcome of either party’s application for financial remedy, depending on the precise circumstances surrounding the completion of the agreement.

When considering the level of weight that should be placed on Separation Agreements the court will take into account:

• Whether there was pressure from one party on the other to enter into the agreement
• Whether a party exploited a dominant position to obtain an advantage
• Whether the full extent of the parties’ assets and financial circumstances were not disclosed
• Whether either party did not take legal advice or received bad legal advice
• whether there was a substantial unforeseen change in circumstances

Ultimately, the court’s role will be to decide whether the agreement is ‘fair’. Agreements are more likely to be considered to be fair if they are recent, if circumstances have not materially changed and if you can evidence that you knew exactly what you were agreeing to when the separation agreement was made, both legally and financially, without undue pressure being applied.

A Separation Agreement can deal with:

• your agreement to live apart
• your obligations to maintain one another and any children
• the distribution of your assets, and
• arrangements for any dependent children

Yes, if you wish to divorce or dissolve your civil partnership, you do not have to have a Separation Agreement in place and you can deal with your finances either by an agreed Consent Order or a Financial Remedy Order from the court. 

There are many advantages to getting a Separation Agreement. Separation Agreements are flexible and can be adapted exactly to your specific circumstances. You can retain full control of the process and this can actually make the divorce or dissolution process smoother, cheaper and less stressful. It gives you time to decide if you really want to divorce. Separating can feel less permanent and means you can live apart while still being married, should you decide that a divorce is not really what you want after a period of time.

• It allows you to separate if you cannot divorce.
• If you have been married for less than a year and decide that things are not working.
• It allows you to easily make arrangements for children
• It makes divorce/dissolution and life after that easier, particularly if court processes can be avoided and costs can be reduced.