Separation agreements
It may be that you are not sure that the marriage has irretrievably broken down and that you want to have a ‘trial separation’, to see if the marriage can be repaired.
Alternatively, it may be that you have religious objections to divorce, and therefore wish to remain married. In this situation a judicial separation is another commonly used option – see below.
Or it may be that you accept that the marriage has irretrievably broken down but you can’t, or don’t want to divorce on the basis of adultery or unreasonable behaviour, and therefore you want to wait until you have been separated for two years, before divorcing by consent.
In such circumstances, you may enter into a written separation agreement (also referred to as a ‘deed’) setting out the terms of their separation, in particular in relation to arrangements for children and finances.
Why have a separation agreement?
Why should a separating couple enter into a written separation agreement? Why don’t they just agree everything verbally, and go their separate ways?
The simple reason is that a written agreement is proof of what was agreed. It is all too easy to forget the details of a verbal agreement or to misunderstand exactly what was agreed. A written agreement makes it clear what was agreed and can later be used as proof of the agreement in any future court proceedings.
A separation agreement is technically a legal contract and could therefore be enforced as a contract, at least in theory. In practice, however, if the terms of the agreement are not adhered to then the aggrieved party is usually best advised apply for a remedy from the family court, which may involve divorce proceedings. As indicated above, the agreement can be referred to in any such application.
Separation Agreement FAQs
Why should a separating couple enter into a written separation agreement? Why don’t they just agree everything verbally, and go their separate ways?
The simple reason is that a written agreement is proof of what was agreed. It is all too easy to forget the details of a verbal agreement or to misunderstand exactly what was agreed. A written agreement makes it clear what was agreed and can later be used as proof of the agreement in any future court proceedings.
A separation agreement is technically a legal contract and could therefore be enforced as a contract, at least in theory. In practice, however, if the terms of the agreement are not adhered to then the aggrieved party is usually best advised apply for a remedy from the family court, which may involve divorce proceedings. As indicated above, the agreement can be referred to in any such application.
There are no hard and fast rules about what a separation agreement should contain, but the following terms are commonly included:
- The date of the separation, and an agreement to remain separated (unless both parties agree to resume cohabitation). The date of the separation can be used in any future separation-based divorce proceedings.
- An agreement to commence divorce proceedings if the parties are still separated by a certain date. This often used to refer to two-year separation and consent divorce proceedings commencing after two years have elapsed from the date of the separation.
- Agreed arrangements for any dependent children, including with whom they should live and when, what contact the other parent should have, and what child maintenance should be paid, if any.
- The terms of any financial settlement, including what is to happen to the (former) matrimonial home, and any other financial assets. The agreement will usually also include a term stating that when divorce proceedings go through a consent court order will be obtained, confirming the settlement terms. Visit our page about consent orders, for more information.
A separation agreement is a legal document that should really be drawn up by a Solicitor. It is also strongly recommended that expert legal advice is sought before agreeing what the separation agreement should contain.
Accordingly, the best procedure is to consult a Solicitor before you commit to anything. With the help of the Solicitor, you can agree with the other party (who may also have a Solicitor) exactly what the deed should contain.
Once agreement has been reached, one of the Solicitors will prepare a draft of the deed. This will be sent to the other party or their Solicitor for approval.
Once the exact wording has been agreed by both sides, two copies will normally be prepared, both will be signed by both parties and dated, and each party will then keep one of the signed, original copies.
Judicial separation
If a couple separate but don’t wish to divorce, or can’t get divorced (for example because they have not yet been married for a year), then a judicial separation is an alternative to entering into a separation agreement.
Judicial separation involves applying to the court. The procedure is very similar to divorce proceedings. It is still necessary to prove one of the five ‘facts’ (adultery, unreasonable behaviour, desertion, two years’ separation with the other party’s consent and five years’ separation – see here), at least until no-fault divorce comes in.
The difference from divorce proceedings is that at the end of the procedure the court grants a decree of ‘judicial separation’, rather than divorce.
A decree of judicial separation means little in itself, but the main reason for obtaining a judicial separation is that it is then possible to apply to the court for the same kinds of financial remedy orders as are available in divorce proceedings, save for certain orders relating to pensions. Judicial separation is therefore useful where the parties do not want a divorce, but cannot agree a financial settlement.
A judicial separation does not prevent a future divorce.