Separation agreement - factsheet

separation agreement


 

When do you need a separation agreement?

A separation agreement is needed when a separating couple want to be able to prove the terms of an agreement between them. This is most typically a financial agreement but can also include arrangements for children.

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

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

For example:

  1. When claiming benefits, such as child benefit if your spouse or partner earns more than £50,000 per year, you may find that you need to prove you no longer live together as a couple, especially if you are still under one roof.
  2. When buying a property separately from your spouse or partner if stamp duty is payable.
  3. When applying for a mortgage; the lender may want to see evidence of an agreement to pay maintenance to prove your income.

Separation agreements are for both married and unmarried couples.

How do I get a separation agreement?

We can prepare one for you. Just use the contact form below to get in touch and we will take some more details to be able to provide you with a quote. Or, you can provide a little more information in the fee enquiry form here for an estimate first.

How much does a separation agreement cost?

To give you an idea of the most common fees we charge:

  • A straightforward, clean break separation agreement, where there are limited or no assets is £180.
  • An agreement with a little more complexity, needing perhaps to record property adjustment and payment of lump sum and/or a more detailed schedule or description of assets will be around £225.
  • Settlement of property on top of these other agreements is likely to start at around £270
  • More complex arrangements such as those involving detailed spousal maintenance, several properties or property abroad will cost more.
  • Please note that pension sharing can only be done by court order on divorce.
There is no charge for routine correspondence and communication in connection with taking your details and the preparation of the documents.

Whilst the majority of people do not seek further assistance, telephone consultations and bespoke advice may be requested in addition to the preparation of documents and if so, these are charged for separately. These fees will always be agreed beforehand. There are no hidden charges.

Contact me to make an enquiry. It won't cost you anything.

I can then check the detail of what is agreed and confirm the fee before undertaking any work.

There are no hidden charges and you will not be charged for providing me with the details in a questionnaire and my assessment of them prior to confirming the cost of your separation agreement.

Writing your own separation agreement - is it legally binding?

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

Then you should ask a solicitor to put it into a more formal legal document. A solicitor drafted separation agreement in the form of a deed makes it clear that it is intended to be legally binding on you.

A draft you have done yourself is less likely to be upheld in court in the event of a dispute.

But, if it is upheld it may make the situation worse if it says something you didn't intend.

Recent rulings all point towards people being held to the terms of a separation agreement, even if they don't take advice beforehand.

Think carefully before downloading a free sample and trying to adapt it yourself or an "off the peg" form you fill in yourself.

Mistakes are easily made and often impossible to fix later.

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, a properly drafted deed of separation which has been signed and witnessed without pressure or duress is very likely to be upheld even if one of you changes your mind after the deal has been done.

If the terms of the agreement aren't fair this is entirely different and those sorts of agreements may well be challenged.

If I think that the terms of your agreement do not look fair I can tell you in advance and help you alter it if necessary.

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.

When there is a disagreement between two people 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 can be interpreted entirely differently.

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 are buying a property following a separation from your spouse or partner, you will be made aware of the changes last year to stamp duty rules for married couples and civil partners.

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

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 if it is anything other than is exactly on the title deeds themselves.

If you don't know, check.

Having 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 many years down the line, possibly even after one of you has died, what you agreed about the shares in your property.

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 is 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 and must be drawn up by a regulated business such as a solicitor as it is a reserved legal instrument.

Always use a legal service where you can independently verify the training and competence of the person doing the 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, such as 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 either talk it through between you or with the help of family or friends or with professional help from a solicitor or mediator.

What if we can't agree?

You would need to consider your options carefully and should discuss them with a mediator or solicitor if you need help understanding your rights and responsibilities. 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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