What Is a Legal Separation Agreement and Why Would I Get One?

Although your marriage coming to an end is not something pleasant to think about, it is important to explore your options rather than just assuming divorce is the only option you and your partner have.

It is possible to opt for a legal separation, which can act as a forerunner to a finalised divorce or a final choice for those couples who do not want to divorce.

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What Is Legal Separation?

Separation is often the first step that couples will take in order to avoid jumping too fast into divorce proceedings.

It is useful to separate initially, even if you ultimately choose to pursue a divorce, reconcile the relationship, or even just remain separated.

There is a difference between simply separating and formally separating through a legal application; the latter provides more security – particularly financially – moving forward.

To legally separate means that you and your partner agree to live as separate people leading separate lives.

It should be noted that in some cases it is possible that this can be achieved in the same house, but there must be proof provided that you are actually living separately.

What Is A Separation Agreement?

A formally drawn up separation agreement can deal with a range of things, but most importantly the couples’ finances.

One of the primary purposes of a separation agreement is that the couple accepts to live apart.

Who will live in the family home can also be written into the agreement.

A timescale can be agreed for one or both of them to leave the shared home and set up a new one elsewhere.

Financial Settlement

Ideally the agreement will set up a financial settlement which will need to be presented to the court for approval when the couple are proceeding with a divorce.

If the couple’s individual financial circumstances differ significantly, it may be deemed necessary for one person to pay maintenance for the benefit of the other personally and/or for any children they have together.

A separation agreement can also deal with the payment of school fees, a mortgage or rent, and how other shared outgoings will be met.

In particular, thought should be given to dates and circumstances under which agreement to pay any sort of maintenance will end.

A family law solicitor will be able to advise on this.

What Does A Separation Agreement Consist Of?

Usually, a separation agreement has primarily two functions:

  1. To outline the living situation of the separating couple
  2. To outline the rights and obligations of both individuals upon the separation, most importantly regarding finances

Almost always, both individuals will need to set out in their agreement how their shared home will be dealt with.

This can mean a sale, one party buying the other out or giving up a tenancy within a certain timescale.

A properly put together separation agreement will be based on the full disclosure of both people’s financial circumstances.

Although this might seem too personal, without full financial disclosure the separation agreement is extremely unlikely to be upheld if there is a dispute in the future.

Both crucial parts and anything relevantly related to them will be discussed by the couple and a family law solicitor.

This can occur individually or together depending on the circumstances.

The solicitor will then draw up the agreement clearly based on what the couple have agreed on with regards to habitation and finances.

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Legal Separation over Divorce

Many people choose to opt for separation before divorce, whilst others see legal separation as enough to mark the end of the relationship.

For many couples, choosing legal separation over divorce can make more sense, both in terms of their relationship and their finances.

Legal separation as opposed to divorce can help to keep your finances afloat, not only due to the high cost of divorce but also due to the fact you may be able to continue receiving certain benefits.

Separating as a first port of call is a reasonable initial step to take, as it is not as final as a divorce.

If there is any chance you think you may be able to reconcile the relationship, a legal separation can act as a temporary measure and allow you and your partner to take time apart.

In this period apart it may still be necessary to have a separation agreement drawn up in case of any bumps in the road which may cause further issues.

Separation Before Divorce

If you are separating with the view to divorce after the two year period necessary to qualify on the grounds of separation, you are one step closer.

In the meantime, it is advisable to draw up an agreement which can be carried forward once you begin divorce proceedings.

This limits the chance of problems concerning finances and living arrangements arising during the two years.

It is important to remember that every marriage is unique, so it is paramount to take your time to make a decision.

Legal separation can buy you that time, whilst simultaneously dealing with key issues of a marriage which can fall apart during a break-up.

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Advantages of a Separation Agreement

  • A separation agreement provides a level of protection against your partner backing out of a financial agreement
  • An agreement made regarding the financial settlement early on can provide a sound basis for the ultimate financial consent order which is presented to the court once an official divorce date is set
  • A separation agreement is more certain that simply putting off a financial settlement discussion until the divorce proceedings begin, which will be two years or more post-separation

Disadvantages of a Separation Agreement

  • Unfortunately, no financial agreement regarding a divorce or civil partnership dissolution is legally binding until it has been approved by the court 
  • Financial aspects of a separation agreement will not achieve finality in the same way as a consent order approved by the court will
  • It can be argued that even with a very good separation agreement, there is a lack of closure for the couple since they will have to revisit their financial settlement at the point of divorce

Financial Consent Orders

A financial consent order is a legal document which confirms the financial section of your separation agreement and makes it legally binding.

It explains how you’re going to divide up assets like:

  • money
  • property
  • savings
  • investments

As stated above, a financial consent order can also include arrangements for maintenance payments like child maintenance.

A family law solicitor will need draft a ‘consent order’ and ask a court to approve it in order to complete this part of the process.

A consent order is only available to those who are legally separated but have begun divorce proceedings.

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We Can Help

It is important to know and understand your options for separation, else you could end up getting yourself in quite some financial difficulties.

If you require any assistance regarding divorce or legal separation our family law solicitors will be more than happy to help you – just get in touch via the contact form or on the phone 0844 414 0667.

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