Upon separation, couples whether married, unmarried or in a civil partnership can enter into a written agreement setting out what they intend to happen to their money, property and other practical issues as a consequence of their current or planned separation. This written agreement is called a separation agreement.

A separation agreement is a contractual agreement between married or unmarried couples or parties to a civil partnership dealing with:

• your agreement to live apart

• your obligations to maintain one another and any children of the family

• the distribution of your assets, and

• arrangements for any children of the family

In England and Wales separation agreements are not strictly binding in the event of a later divorce, but the terms of a separation agreement may be decisive in the event of a dispute dealt with by the court unless the effect of the agreement would be unfair. It is not possible in this country to have a fully binding marital or civil partnership agreement about what will happen on divorce or dissolution.

To improve the prospect that the court will not consider the agreement to be unfair if it is necessary to rely on it, both of you will need to set out your financial circumstances in full (called financial disclosure), and take independent legal advice on the agreement and its effects. You can negotiate an agreement using mediation or collaborative law, or by using solicitors to negotiate and draft the terms of the agreement on your instructions.

It is possible that the court might uphold part of an agreement while considering a different part to have an unfair effect.

Even though separation agreements are not always binding, you should not enter into a separation agreement unless you intend to be bound by the terms of that agreement.

If you would like further information about separation agreements please contact us and we will be happy to assist you.

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