Comment Magazine Issue 7

Separation agreements –
an alternative to divorce
Relationships do not always pass the test of time,
with the Office for National Statistics reporting that
one in three marriages will end in divorce. The end
of a marriage need not necessarily end in divorce,
with many couples choosing instead a separation
agreement. Bryan Scant explains.
Separation agreements are, in short, like
a contract between a married couple
or those in a civil partnership that sets
out clearly the financial arrangements
and responsibilities of each party. They
remain valid until the couple divorces or
until the relationship is restored.
There are many reasons why a couple
may not wish to divorce immediately
and choose a separation agreement,
including religious reasons, family
pressures and, particularly if parties have
been separated for under two years, the
court’s requirement to apportion blame.
Until government reforms divorce
laws and allows for ‘no fault divorces’,
the only option open to couples
separated under two years is to
apportioning blame where none may
exist. This, understandably, leaves
many couples in short marriages,
who are separating without any
real animosity, in an uncomfortable
position.
A separation agreement will allow a
couple to move on in their lives having
agreed how their assets and financial
responsibilities will be managed.
It will also make any future divorce
considerably easier and cheaper.
Separation agreements can cover a
wide range of matters, including:
• Who will pay the mortgage or rent,
and household bills;
• Who will continue to live in the
family home and what happens if it’s
sold;
• What happens to any debts, such as
loans or overdrafts;
• What happens to savings,
investments and other financial
assets;
• What happens to any items such as
cars or furniture, especially if bought
jointly; and
• Whether maintenance is paid to
support a financially weaker spouse.
Whilst not technically legally binding,
a court case in 2010, known as the
Radmacher case, provided clarity and
legal weight to what the courts call
‘nuptial agreements’, meaning that prenuptial,
post-nuptial and separation
agreements can influence a court’s
decision on divorce settlements.
This means that couples wishing to
create a separation agreement must
do so without any undue influence
from either party, and be prepared
to disclose all of their combined
and individual finances. Separation
agreements must be fair and cannot
leave one party in a financially
disadvantaged position. This will
mean that they will be quite detailed,
addressing every financial aspect of the
relationship.
Whilst it is entirely possible to create
a separation agreement without the
help of a solicitor, perhaps from a free
to download form from the internet,
it is not advisable. For a separation
agreement to have any legal weight,
it is vitally important that each party
takes independent legal advice before
signing the agreement.
If and when a couple eventually seeks
a divorce, the courts will look to the
fairness of the agreement and if they
cannot demonstrate the fairness of the
agreement, the courts can simply ignore it.
It is good practice to keep
arrangements about the care and
access to children outside of a
separation agreement. The courts
will always look to what is in the best
interest and needs of any children from
a relationship at that point in time and
in future years. Separation agreements,
by their very nature, focus on the
financial position of a relationship at
the point of time of separation and
therefore may not adequately address
the needs of any children. It is also
good practice not to combine financial
disputes with child arrangements as
one should not influence the other.
There are some downsides to
separation agreements that couples
should understand before they decide
whether they are the right option for
them.
Separation agreements tend to
be self-policed and work because
the breakdown in the relationship is
largely amicable. However, they can be
difficult to enforce if one party decides
not to abide by its terms, leaving
divorce the only realistic option. An
application to the court is necessary to
begin financial remedy proceedings,
which can be lengthy and costly.
They also do not offer the closure of
a financial settlement approved by the
courts that an order on divorce delivers.
That will mean any such agreement
will need to be revisited from time to
time. And of course, individuals will
remain married which may make future
relationships difficult.
Separation agreements are
increasingly popular, used not as a
long-term alternative to a divorce, but
as a stepping stone towards that final
clean break without the animosity of a
blame based divorce.
Contact us direct
Bryan Scant
Solicitor - Family
023 9236 4954
bryanscant@coffinmew.co.uk
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