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Creating a Separation Agreement

A Separation Agreement is a legal agreement made between two people who are separating or have separated and are either married, in a civil partnership or cohabiting relationship


The Agreement usually sets out the financial arrangements agreed during the period of separation and how they should be divided in any subsequent divorce if the parties to the Agreement were married. It is important to note however that a Separation Agreement does not end a marriage, if a couple wishes to divorce, one party will need to start divorce proceedings.


There are various reasons why couples may wish to enter into a Separation Agreement rather than immediately commence divorce proceedings. Such as they may have been married for less than 1 year and so cannot commence divorce proceedings due to the 1-year rule. As there is currently not a ‘no-fault’ option for proceeding with a divorce they may wish to wait and use the fact of 2 years’ separation by consent or 5 years separation and regulate their financial position in the meantime. Alternatively, there may be cultural or religious reasons why couples may wish to separate rather than commence a divorce proceeding.


Whilst a Separation Agreement is a form of legal document in that it is a contract, it is not a Court Order and cannot override legislation. It is therefore technically not legally binding.


If a Separation Agreement is entered into voluntarily by both parties, with the benefit of legal advice, both understand the implications of entering into the Agreement, disclosure by both parties has taken place and the terms of the Agreement are fair and reasonable, it should carry ‘weight’.


Separation Mediation


A Separation Agreement can be discussed, and the terms of the Agreement agreed within the forum of Mediation. It is recommended that any Agreement reached be drawn up by a solicitor to ensure the document complies with the requirements as set out above.


Mediation is a process in which an impartial third person assists those involved in a relationship breakdown to communicate better with one another and to reach their own agreed and informed decision about some or all of the issues relating to or arising from separation.


What are your rights when separating?


Legal rights and responsibilities on separation are complex and are dependent on a variety of different factors, including whether the couple is married or in a cohabiting relationship.


Cohabitees do not have the same legal rights as married couples, despite a common belief that cohabitees are common-law spouses there is no such legal status. In order to protect cohabitees' positions on separation it is advisable to enter into a Cohabitation Agreement prior to commencing cohabitation which is similar to a pre-nuptial agreement in that it records how the couple will manage finances and property should the relationship end. As the law that applies to cohabiting couples is complex it is highly advisable to seek advice from a specialist family legal advisor.


Where a couple is married, depending on the length of marriage both parties will be entitled to a share of the matrimonial assets. It is important to recognise that regardless of in whose name the asset is in, both have a legal right to the asset after separation.


Legal rights as to property will very much be dependent on the couples’ individual circumstances as to whether the property in which they live is rented or owned. Broadly speaking if a couple is married they both have a legal right to remain living in the property in which they lived as a married couple; the former matrimonial home. If a property is owned and held in one party’s sole name, the other party will still possess legal rights. In such a circumstance it is highly recommended a Matrimonial Home Rights Notice is registered against the property to protect the position of the party not named as the legal owner.


As legal rights and responsibilities on separation are complex and dependent on a variety of different factors each case should be considered individually, and legal advice from a specialist family law advisor is highly recommended.


Who should move out?


Deciding who should move out will very much depend on individual circumstances such as whether the couple have children, does one party have a right to remain in the property and financial affordability.


There are very few circumstances in which a person can be forced to leave a property on separation. It is advisable to get advice from a specialist family legal advisor as to your individual situation if you are concerned about your ability to remain in a shared property.


Separating without moving out 


Couples can separate and remain living in the same property. Although on separation a couple may wish to live in separate properties, in reality, this may often not be financially possible. As a result, some couples choose to remain living in the same property. If they do they can still be considered as being separated provided they are living separate lives in that they are not intimate, do not carry out domestic chores for one another or socialise together.


Karen Jeary

Family and Relationships