Separation Agreement Factsheet

separation agreement

What is a separation agreement?

A separation agreement is used to record any agreement between a separating couple.

A typical separation agreement will record what is to happen to money and property after a couple separate.

It can also be used to record arrangements for children.

A separation agreement drafted by a solicitor or barrister is often also known as a deed of separation.

Deeds are different from an ordinary agreement and are intended to be legally binding documents. 

When do you need a separation agreement?

You need a separation agreement when you want to be able to prove the terms of an agreement after separation.

This is typically a financial agreement, but can also include arrangements for children.

A separation agreement or deed of separation can help protect you from future financial claims on divorce.

Proving you are actually separated.

There are also times when you will need a separation agreement simply to prove that you are separated.

For example:

  1. If you claim child benefit and your spouse or partner earns more than £50,000 per year. You may need to prove you no longer live together as a couple. This is more likely if you are still under one roof.
  2. When buying a property separately from your spouse or partner if stamp duty is payable.
  3. Some mortgage lenders like evidence of an agreement to pay maintenance to prove your income.

Separation agreements are useful for both married and unmarried couples.

Writing your own separation agreement – is it legally binding?

That depends.

It is useful to write down what you have agreed between you. Do this when you are having a conversation or meeting about it.

If it is clear and unambiguous it may be upheld by a court, but there is no guarantee.

You should ask a solicitor to put it into a more formal legal document. A solicitor drafted separation agreement makes it clear that it is intended to be legally binding.

Mistakes in a home-made separation agreement.

It’s possible that homemade separation agreement will includes terms you don’t want or understand.

This is more likely if you use an off the peg or free separation agreement template from the internet. 

Often these use terms that seem more appropriate for use in another country.

They usually contain jargon that may seem to mean one thing, but in fact means another.

If upheld, these may make the situation worse than no agreement at all,  if it says something you didn’t intend.

Recent rulings all point towards people being bound to separation agreements, even if they didn’t take advice beforehand.

Think carefully before downloading a free sample.

Mistakes are easily made and often impossible to fix later.

Off the peg or free online separation agreements

If something is worth protecting, we recommend that you don’t use a free template. 

Free separation agreement templates can be a bit hit and miss. 

Think of them as a bit like a voice recognition on a phone or a translation tool. 

If you’re asking it to do something really simple, it can perform quite well. But you wouldn’t want to rely on it in court. 

On the subject of court, what happens if that’s where you end up anyway?

Can the terms of a separation agreement be challenged in court?

A separation agreement is usually intended to be a final financial settlement.

Where the terms of the separation agreement are fair, it is very likely to be upheld. A properly drafted separation agreement need to be signed and witnessed without pressure. It is very likely to be binding even if one of you changes your mind afterwards.

If the terms of the agreement aren’t fair this is entirely different. Those sorts of agreements may well be challenged.

A well-drafted separation agreement will make it absolutely clear what is and what isn’t agreed

A separation agreement is intended to be legally binding and can usually be used as evidence in court proceedings.

However, unless:

  1. you have clearly written terms in the agreement; and
  2. it is entered into without undue pressure on either of you;

it isn’t likely to be upheld in the family court.

Remember what looks clear to you may be not be clear to someone else.

Let’s say there is a disagreement over what was agreed. The separation agreement needs to be unambiguous to be of any real use at all.

The worst type of separation agreement is one which you thought said one thing and in fact said another.

If you want to be sure that your agreement says what you intend, the safest way is to ask a solicitor to draft it for you.

Stamp duty for separated couples

If you’re buying a property following a separation from your spouse or partner, you need to know about stamp duty.

You need to show evidence that you and your spouse or partner are separated. The government has guidance on its website.

It states as follows:

If you are married or in a civil partnership and buying a property whilst you still own another with your spouse or civil partner, you will need:

  • a formal separation agreement;
  • written as a deed; and
  • therefore in writing and properly executed.

to show HMRC that you are no longer living together as a couple and you intend this to be permanent.

Your marriage or civil partnership must have broken down in order to claim the exemption for stamp duty.

Separation agreements and changes to property ownership

If you have an agreement in relation to property it is imperative that this is recorded in writing. This is especially if it’s anything other than is exactly on the title deeds themselves.

If you don’t know, check.

I’ve represented many people over the years in relation to property claims. I can’t stress enough how important it is to record any agreement about rights in or over property.

You may need to prove it many years down the line, possibly even after one of you has died.

If you can’t prove what you agreed, you may lose everything.

When your home is everything that is particularly distressing. A separation agreement or deed of separation may prevent that.

Property law in England and Wales is very strictly interpreted.

Married couples have some protection in relation to each other whilst they are both alive. But it’s very different once one person has died – and there are no special rules at all for unmarried couples.

If you want to be sure your agreement in relation to property is enforceable it must be in a deed. And it must be properly drawn up and witnessed.

Finally, any form of document which creates a legal charge over a property must be a deed. It must be drawn up by a regulated business such as a solicitor as it is a reserved legal instrument.

You can independently verify the training and competence of the solicitor doing work for you.

Do I need an official stamp to show that I am separated?

Unlike a consent order on divorce, a separation agreement does not have an official seal or stamp.

Usually a formal deed of separation/separation agreement will be accepted at face value by government and local authorities. For example, HMRC and council tax offices when you apply for council tax relief and tax credits etc.

You will not have a sealed document as such until there is a decree nisi or absolute of divorce/decree of dissolution.

If you want to apply for a mortgage some mortgage lenders may accept a separation/maintenance agreement to prove receipt of maintenance. However you should check this with the individual lender as some may require a consent order.

If you want to change your name after separation you can use a change of name deed to do so.

Who decides what happens to our property when we have a separation agreement?

You do is the simple answer.

You can talk it through between you or with the help of family or friends. Or, you can choose professional help from a solicitor or mediator.

What if we can’t agree?

You need to consider your rights and responsibilities carefully. If you need help, you should discuss your options with a mediator. One option is to start divorce proceedings to enable you to apply for a financial order (for example maintenance and property adjustment).

What is a judicial separation as opposed to separation?

Judicial separation is a formal legal process very similar to divorce, with one important distinction – there is no decree absolute. Therefore you remain married although legally recognised as judicially separated.

The court has the power on pronouncement of a decree of judicial separation, to make financial orders such as maintenance and property adjustment in much the same way as it does on divorce.

By contrast, separation without going through formal judicial separation proceedings does not alter your legal status as husband and wife/civil partners. You remain each other’s next of kin and will automatically inherit each other’s estate on death under the rules of intestacy if there is no will and be able to challenge a will if one exists and makes no provision for the survivor.

Whilst you are married/civil partners (even if separated) there remain important rights and responsibilities to maintain each other, occupy the family home and share the assets of the marriage/civil partnership.
If you agree arrangements touching on any of these issues it is advisable to write this agreement down in a way which would be considered legally binding. This is known as a separation agreement.

Who would use judicial separation proceedings?

In reality they are rare. People who hold strong religious or moral views may choose to be judicially separated rather than divorced.

Occasionally, where people have been married less than a year when they separate and cannot divorce, they may use the procedure to claim financial relief. However, if they later wish to be divorced they will have to start all over again to finally receive a decree absolute.

Most people who are intending to divorce after being separated wait for two years before commencing divorce proceedings based on the fact that they both consent to a divorce. It is very rare for these people to judicially separate first.

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