Separation agreements – What do you need to know?

17th August 2023

Dealing with the intricate challenges of a relationship breakdown can prove to be demanding. For couples considering separation but who are not quite ready to take the leap into divorce, a separation agreement could be a beneficial step.

The end of a marriage or civil partnership can be an emotional and confusing time, which is why before jumping straight into a divorce or dissolution, many couples opt for a separation agreement.

This agreement offers a middle ground, providing clarity on financial and parental responsibilities, without the finality of a divorce.

What is a separation agreement?

A separation agreement is a written document that outlines the agreements made between partners upon their decision to live separately.

They encompass various aspects, such as financial arrangements, property divisions, child custody and even agreements concerning debts and pensions.

Are separation agreements legally binding?

It is crucial to understand that separation agreements are not inherently legally binding in England and Wales (Scotland has its own legal system).

However, they can hold significant weight in court if they are drafted correctly, entered into voluntarily, without duress or undue influence, and both parties have sought independent legal advice prior to signing the agreement or in other words have a full understanding of the rights they are acquiring or surrendering.

To make the agreement as robust as possible, both parties should fully disclose their financial circumstances.

Advantages of a separation agreement

  • Clarity – It provides both parties with clarity on their responsibilities and rights during the separation phase.
  • Flexibility – Compared to court orders, separation agreements allow for more flexibility, enabling couples to decide on arrangements that suit their specific circumstances, even varying agreements later on if circumstances change
  • Cost-effective – Resolving disputes through a separation agreement can in certain situations be less expensive than going through litigation.
  • Less stress – By addressing potential issues early on, it can prevent further disputes and reduce the emotional strain on both parties.

Disadvantages of a separation agreement

  • Not legally binding – As mentioned earlier, separation agreements are not inherently legally binding. While they can be influential should a dispute arise, they do not offer the same ‘gold standard’ as court orders.
  • Changing circumstances – Over time, circumstances (financial, personal or related to children) can change, rendering some parts of the agreement unsuitable or unfeasible.
  • Requires cooperation – Both parties need to be in agreement for it to work. If one party is not cooperative, it can be challenging and stressful, indeed often impossible to establish a separation agreement.

Seeking legal advice

Due to the nuances and complexities involved, it is always advisable to seek independent legal advice before entering into a separation agreement.

A solicitor trained in family law can ensure that your interests are adequately protected and that the agreement is drawn up correctly and fairly, thereby giving it the best chance of being considered in court if ever challenged.

Separation agreements offer a valuable tool for couples looking to establish clear boundaries during a difficult transitional period in their relationship.

While they come with their sets of advantages and drawbacks, with the right legal guidance, they can provide a sensible route towards understanding and clarity.

If you need help creating a separation agreement, get in touch with our expert team today. Please contact David Smith, Head of Family Law, on 01543 263456 or at

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