Family Associate Olivia Le Masurier takes a look at separation agreements, discussing whether they're binding, enforceable and ultimately worthwhile.
What is a separation agreement?
A separation agreement is a document which is made when a couple stop living together. It can set out financial, child(ren) and property arrangements.
Why would you get a separation agreement?
If you are married, you can use a separation agreement as a preliminary step before finalising the arrangements with the Court.
Or, you could use the agreement as a replacement for a divorce. Couples may do this if their split is relatively ‘civil’, and a divorce is not needed.
Alternatively, if you and your partner are taking a break from the relationship, it would be useful to have a separation agreement drawn up to show your respective intentions at the time of the break.
However, a split may become uncivil, even if it is amicable to start with, and you may end up needing a divorce anyway.
For an unmarried couple, a separation agreement would be useful to show the parties’ intentions at the point of separation, in case one of the parties decides to take action against the other at a later date.
Is a separation agreement legally binding?
No, a separation agreement is not legally binding. However, if it is correctly prepared, it can attach significant weight.
Can you enforce a separation agreement?
Essentially, no – as it is not legally binding.
However, it could become legally binding (and therefore enforceable) if you were to ask a solicitor to re-draft it and apply for a consent order.
At Frettens, we have experience in drafting separation agreements and court order applications. You can get in touch with us here.
Do both parties have to agree to a separation agreement?
Yes, for a separation agreement to be ‘valid’ it must be entered into voluntarily.
A court will likely uphold the agreement if:
- Both parties were in agreement at the time of drafting
- Both parties entered into the agreement under their own free will
- Both parties took legal advice
- No circumstances have changed that may affect a court’s decision
- Both parties disclosed their full financial position truthfully
- The terms of the agreement are fair and reasonable
What can void a separation agreement?
A separation agreement may not be upheld if it does not meet the criteria outlined above.
It may be voided if there’s evidence of:
- Coercion
- Fraud
- Information being hidden/kept from either party
- Circumstances changing
How to get a separation agreement
The first step in getting a separation agreement is actually agreeing! You and your ex-partner will need to agree on what will be included in the agreement and what the terms will be.
Once you’re both in agreement, your solicitor can draft up the agreement.
The agreement can then be signed and witnessed.
How long does it take to get a separation agreement?
We can’t really estimate how long it will take for you and your ex to agree on the terms, it often depends on how amicable your relationship is.
As for the rest of the process, from first draft to signing, it should take roughly 1-8 weeks, depending on how quickly you, your ex and their solicitor act.
What rights do I have after I split up with my partner?
There is no hard and fast rule here and much of this depends on a number of factors, i.e. whether you are married or unmarried, if you are married, how long you have been married, and whether children are involved.
To receive advice on your specific circumstances, please don't hesitate to get in touch with our bright Family Team by calling 01202 499255.
Do I need a solicitor to draft a separation agreement?
A solicitor is not required to draft a separation agreement, however we strongly advise that you do seek legal advice.
A solicitor will be able to:
- Ensure that the agreement has been drafted correctly (to increase your chances if you end up going to court),
- Ensure that you’re signing a fair agreement,
- Point out any potentially hidden information (such as finances that your ex-partner hasn’t disclosed), and
- Answer any questions that you may have throughout.
Specialist Separation Agreement Solicitors
At Frettens, our bright team of Family experts would be happy to assist you in drafting a separation agreement.
We can also:
- Assist you in proving an agreement’s validity in court
- Apply for a consent order on your behalf, to make an agreement legally binding
- Assist you in your divorce, if necessary.
Call us on 01202 499255 or fill out the form at the top of this page for a free initial chat.
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