Separation Agreements UK Guide – Are They Legally Binding?

In this editorial, we aim to offer free information to help you understand when separation agreements are useful and how you go about obtaining one.

Written by: Mark Keenan Founder & CEO

Mark Keenan is the Co-founder and CEO of Online Legal Services Limited, the parent company of Divorce-Online. He co-founded the company while working in a high street Solicitors way back in 1999.

Written By:Mark Keenan

Last Updated:March 9th 2024

What Is a Deed of Separation Agreement?

A Separation Agreement, also known as a Deed of Separation, is an agreement between a separating couple in the form of a legal contract which can be used by married or unmarried couples.

It aims to set out who will take on financial responsibilities like paying the mortgage or rent and household bills or debts following a separation.

If you’re cohabiting, married or in a civil partnership and you decide to separate from your partner, you can enter into a separation agreement to agree on how your money, property, assets, and other responsibilities like debts are to be divided.

Obtaining a deed of separation agreement can be a good way of making sure both parties are clear about the terms of the separation until you get divorced or end your civil partnership.

There are also tax implications when you separate. If you sell or transfer property, you may be subject to capital gains tax if you do not have a separation agreement in place and you sell or transfer the property after 12 months of the date of separation. This is a hidden danger and can only be stopped by having a separation agreement in place.

It can also help you avoid the need for court proceedings at a later stage when filing for divorce and negotiating a financial settlement.

The details outlined in your separation agreement can be drafted into a consent order later during the divorce process, which ends all future financial claims and gives the court powers to enforce any aspect of the agreement should one party fail to comply.

Key Points

A separation agreement is a legal document that outlines the terms and conditions of a separation between two parties who were previously in a relationship.
It can be used by both married and unmarried couples, as well as same-sex couples who have entered into a civil partnership.
It is a contractual agreement outlining the decision to live apart, ongoing obligations, how assets will be distributed, and any arrangements for children.
A separation agreement is not legally binding when a couple gets divorced or ends their civil partnership. However, it can be used as evidence in court proceedings if there is a dispute over the terms of the separation.

What can be included within the agreement?

A separation agreement can cover a range of areas, such as:

How much each party is to pay in respect of the mortgage, rent or household bills.
How any debts such as loans and overdrafts will be split between you.
How the money from the sale of a home will be split after payment of fees.
How to separate joint bank accounts and savings.
Division of personal property such as cars, household goods and furniture.
The payment of any ongoing maintenance for a spouse or children.
Who the children will live with and when they will see the other spouse, e.g. parental access.
A lump sum order whereby a specific sum of money is paid to either party as an alternative to maintenance payments.

Here are some of the key elements that are typically included in a separation agreement:

Property

The agreement should set out what is to be done with the property that the couple has been living in. For example, they may need to take steps to sell their house or flat and divide the proceeds from the sale according to the agreement.

Alternatively, one party may agree to buy out the other party’s share of the property.

Finances

The agreement should include details of how the couple’s finances will be managed during the separation period. This may include details of how bills will be paid and how joint accounts will be managed. It may also include details of how any debts or loans will be repaid.

Children

If the couple has children, the agreement should set out arrangements for their care and welfare. This may include details of where the children will live, who will have parental responsibility, and how much time each parent will spend with the children. It may also include details of how child maintenance will be paid.

Pensions

The agreement may also include details of how any pensions will be divided between the couple. This is particularly important if one party has a significantly larger pension than the other.

Other Issues

The agreement may also cover other issues such as the division of personal belongings, arrangements for pets, and any other matters that the couple wishes to include.

It is important to note that a separation agreement is a legally binding document, so it is important to seek legal advice before signing one. A solicitor can help ensure that the agreement is fair and that both parties understand what they are agreeing to.

Pros and cons of a separation agreement

Pros:

It lets both parties know where they stand, which can take the heat away from the separation.
Both parties have certainty and clarity at a difficult time.
You can decide exactly what you’d like to include.
They are likely to be upheld by a court if they are drafted correctly.
It shows that both parties consider the relationship to be over and the date of separation.

Cons:

Changes cannot be made to the agreement unless both parties agree to them.
The court can disregard some parts or all of the agreement when it comes to a divorce.

How do separation agreements work from a practical perspective?

Depending on the agreement you have reached, you may need to carry out certain actions upon separation such as selling a property and splitting the proceeds equally.

If either party fails to respect the provisions of the agreement, the other party may take legal action for breach of contract if the terms of the agreement have not been carried out.

However, if the deed is not drafted correctly then it may not prove to be legally binding.

It is, therefore, important that both of you receive separate and independent legal advice before signing the agreement, as this may be needed as evidence in any court proceedings to enforce the terms of the agreement.

Like any contract, the only way to enforce it is to take the matter to court.

Is a deed of separation agreement legally binding in the UK?

A separation agreement is not legally binding in its own right.

It is a legal contract between separating couples and not a court order, which means it can be challenged in court in the same way as any other contract can.

Although courts in England and Wales are strictly not bound to impose the separation agreement, in reality, an agreement is likely to be upheld if it meets certain conditions.

The Legal Validity of Separation Agreements

There are several factors that can affect the legal validity of a separation agreement. Firstly, the agreement must be entered into voluntarily by both parties. If one party was coerced or pressured into signing the agreement, it may not be legally binding.

Secondly, the agreement must be fair and reasonable. If the agreement is heavily weighted in favour of one party, it may be challenged in court.

And lastly, the agreement must be properly executed. This means that both parties must sign the agreement and have it witnessed by an independent third party.

It is important to note that a separation agreement is not the same as a divorce or dissolution of a civil partnership. It’s a way for parties to separate without going through the legal process of divorce or dissolution.

However, if the parties later decide to divorce or dissolve their civil partnership, the separation agreement can be used as evidence of the terms of their separation.

When would you need a separation agreement?

If you plan to get divorced at some point then it is well-advised to enter into a separation agreement to put the separation in writing, so this can be referred to later during the divorce to prove consent and agreement between both parties. Circumstances could be:

You are not eligible to file for a divorce because you married less than one year ago
There is a chance you may reconcile after you’ve had time apart from one another
You find it less stressful to negotiate a separation agreement than to negotiate a divorce financial settlement

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