Separation Agreements

A separation agreement is a legal agreement made between two people who are contemplating imminent separation or have already separated. The majority of couples who have a separation agreement will be married or in a civil partnership, so this page. is written with that in mind, although cohabiting couples may wish to have a separation agreement also.

The agreement normally details the agreed financial arrangements during the period of separation and following divorce.

It is important to note that a separation agreement does not legally end the marriage. If a couple wish to legally divorce then one of them will need to issue divorce proceedings with Court and go through the divorce process. Thye should also get any separation agreement turned into a Court order, known as a financial consent order. 

Couples may wish to have a separation agreement to sort out their financial arrangements as the step before formally getting divorced. The most common scenarios that people enter into separation agreements are:

• The couple have been married for less than one year and therefore cannot issue divorce proceedings yet due to the one-year rule.
• The parties have recently separated and don’t want to rely on the grounds on unreasonable behaviour or adultery to obtain the divorce and would prefer to wait the required period of time so that the divorce can proceed on the fact of two years’ separation with both parties consent, or five years’ separation.
• If the parties are having a trial separation
• Religious or cultural reasons

The answer to this question is ‘maybe’. Ultimately, a separation agreement cannot exclude the Court’s powers in financial remedy proceedings on divorce. As such, if either party made an application for the Court to turn the separation agreement into a financial consent order that approved by the Court, which is almost always recommended, then the Court could reject it if the Judge doesn’t deem it to be fair.

However, whilst a court is not legally bound by a separation agreement, the highest Courts in the land have determined that its terms will usually be upheld if the agreement has been properly and fairly arrived at, usually with competent legal advice and full disclosure of the parties financial circumstances, unless there are good and substantial grounds for ruling that it would be unfair to hold the parties to the terms of their agreement.

Examples of when it wouldn’t be upheld include:

• There has been a change in the parties’ circumstances that would mean that the agreement would be ‘manifestly unjust’.
• The agreement fails to make suitable provision for a child of the family.
• Undue pressure by one party to sign the agreement
• No legal advice or bad legal advice received

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  If you are concerned about protecting your assets or need some guidance about achieving a fair financial outcome for you and your family, get in touch with us. Contact our specialist divorce and financial setllement solicitors in Leeds today on 0113 244 6978 or request a free consultation using the contact form below