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Victoria Upton
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Patrick Mulcare
Director, Head of Family Law
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Separation Agreements: What are they and what do they do?

by Victoria Upton Patrick Mulcare | Jul 23, 2018 |

When deciding to separate from your husband or wife there are numerous issues to consider ​- one of them being your finances. Trying to decide whether just to separate or to proceed with a divorce means choosing between two very different options and may cause upset and confusion for both parties.

For many married couples, the decision to proceed with a divorce is not an easy one; both parties need to be protected in terms of their financial arrangements in the meantime.

If the decision to divorce is expected to take place a long way in the future or there is a particular reason that the couple are holding off on taking the divorce route, then entering into a Separation Agreement may be a good option.

Reasons for delaying a divorce might include:

  • waiting for  2 years to pass before proceeding with a ‘no fault’ divorce;
  • either party’s religion or culture.

In these circumstances, a Separation Agreement may be appropriate.

Separation Agreements may also be appropriate for couples who separate after they have been married for less than a year, as the option to divorce is only available to those who have been married for 1 year or more.

What is a Separation Agreement?

Separation Agreements are private contracts between two parties and are available to cohabitating couples as well as married couples or those in a Civil Partnership.

Separation Agreements can cover many aspects of a couple’s financial arrangements, such as who is to pay the bills on the marital home, how property is to be divided and how the money is to be split upon divorce. However, it should be noted that Separation Agreements are not necessarily permanent and differ from an Order that the Court could make.

Pros and Cons

Advantages of Separation Agreements are that:

  • They can be used as a holding position for both parties to agree financial arrangements without going through a long and costly divorce.
  • They can be used to stabilise both parties’  positions whilst the decision to divorce is being made.
  • They can be used to make interim financial decisions whilst the parties await the opportunity to divorce or to divorce on a ‘no fault’ basis. This is also useful for married couples whose religious or cultural beliefs resist divorce.
  • The costs of a Separation Agreement tend to be lower than the costs of a financial Court Order on divorce and therefore may be more appropriate for married couples who cannot afford the costs of a divorce.
  • Unlike divorce, a Separation Agreement is not permanent, meaning that those couples who hope to reconcile or are not sure that the marriage has irretrievably broken down may favour this option.

Disadvantages of Separation Agreements are that:

  • They are not Court Orders and therefore they ‘leave the door ajar’ for either party to apply to the Court at a later date, if they decide they are not happy with the Separation Agreement. Parties should expect to be bound by the Separation Agreement, although it cannot oust the jurisdiction of the Court.
  • A Separation Agreement does not permit a clean break in life and death between parties, which is one advantage of divorce.
  • If they are used as a holding position before parties ultimately decide to divorce, they may have to reopen old wounds and revisit an upsetting time in their lives, when they might have moved on, especially if they proceed with a ‘no fault’ divorce. In these cases parties may have found it easier emotionally and time-wise to just have progressed with a divorce from the beginning.
  • Circumstances may change while the agreement is in place, meaning that the disadvantaged party applies to the Court for a financial order anyway.
  • The parties would end up paying the fees for a Separation Agreement and then the fees for a divorce at a later date, when choosing the divorce option in the first place would have reduced the fees.

Next Steps

Separation Agreements can give married couples who choose to separate the time to assess their options.

At a highly emotional and unstable time in a couple’s relationship a Separation Agreement can provide much needed clarity or hope on the horizon that matters will one day be settled and separate. It may allow circumstances to stabilise to promote an amicable situation, allowing successful communication between the parties if they decide to divorce or reconcile, as, unlike a divorce, the Agreement is not permanent.
Separation Agreements may also be useful in cases where costs are an issue; however, it should be noted that if a divorce is inevitable, payment for both may be ​undesirable.

Couples should carefully consider their desired outcomes before entering into a Separation Agreement. Although Separation Agreements can be useful, for some people, divorce may finally be a more cost-effective and certain way forward.

Getting in touch

For more information, please contact Patrick Mulcare, Director and Head of Family Law at Spratt Endicott Solicitors on 01295 204153 or email pmulcare@se-law.co.uk.

*Disclaimer: While everything has been done to ensure the accuracy of the contents of this article, it is a general guide only. It is not comprehensive and does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation.

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