If you are considering a divorce or dissolving a civil partnership, but you have not filed the papers yet, you can get a separation agreement drawn up. This agreement will set out obligations such as who will pay the rent or mortgage and bills until the decision to continue with a divorce or dissolution is reached.
Other than considering divorce or dissolution of a civil partnership, a separation agreement can be used for other reasons. Another reason why you would use this is, perhaps that you have been together for less than one year in England or Wales or for less than two years in Northern Ireland and so you cannot legally get a divorce just yet but for now, you want to live separately and agree who pays what.
What is a separation agreement?
It is a written agreement that usually sets out the financial arrangements while separated and it can cover several areas such as: Who pays the mortgage or rent, and household bills, Who continues to live in the family home and/or what happens if it’s sold, What happens to any debts, such as loans or overdrafts, What happens to savings, investments and other financial assets, What happens to any items such as cars or furniture, especially bought jointly, Whether maintenance is paid to support one of you and/or any children
Childcare arrangements: who any children live with and parental access.
To ensure that the separation agreement is not challenged, you and your ex must be fully open about all of your finances (this is also referred to as financial disclosure). Based on these, both of you can reach an agreement through negotiation about who is responsible for what. Also note that, for a separation agreement, you do not need legal advice, but you can take it if you want to. Some people do because it is a potentially legally binding agreement, their partner is cause issues such as putting you under pressure, they are wealthier, and you feel that the agreement will be unfair and so on. If you do agree to get legal advice, please note that you cannot use the same solicitor.
Legal Enforceability
In technicality, separation agreements aren’t legally enforceable. However, there are exceptions to it. For example, if you have both been honest and open about your finances and have both taken legal independent advice and safeguards when drawing up the agreement, the court will most likely ask that you stick to the agreement. However, if there are absurd clauses that have been agreed on temporarily, the court will challenge this. For example, not paying maintenance for X period.
Legal Separation:
In very rare cases, you may decide to go for a legal separation. The reasons for this are: Your religion forbids you from getting divorced or dissolving your civil partnership, you want more time and space to work out whether to divorce or dissolve your civil partnership, you’ve been married or in a civil partnership for less than one year in England or Wales or less than two years in Northern Ireland, it’s a much more formal process than drawing up a separation agreement. You have to ask for a legal separation by filling in a form and sending it to your local court.
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