If you are coming out of a relationship, whether you were cohabiting, married or in a civil partnership, you may be asking if you need to formalise that separation. A separation agreement is a formal document which can be agreed between you and your former partner to set out, in clear terms, the arrangements that you agree for the division of your financial assets and responsibilities.
‘No matter how amicable your separation is, and whether you were married or not, it is wise to seek legal advice on your financial position as complications can arise in the future,’ says Fiona Yellowlees, a Partner in the family team. ‘A separation agreement can save you money and upset in the long run.’
You are not legally required to obtain a separation agreement, but it will provide you with a measure of reassurance and a clear record of what was agreed, and why it was agreed, at the time of separation. This will enable you to move forward and make key decisions about your own future, such as housing requirements.
Separation after marriage or a civil partnership
If you plan to divorce ordissolve your civil partnership, a separation agreement can be used to formalise the date when you started living apart and to record the division of finances. This can save the expense of dealing with your matrimonial finances through a contested court process in the future.
If you are not yet ready to proceed with a divorce or dissolution, then a separation agreement can benefit you in immediately helping you move on independently. It is generally a quicker process than awaiting finalisation of the divorce and financial proceedings via court which can take several months.
Often couples will enter a separation agreement and then proceed with an uncontested divorce or dissolution in the future, such as after two years separation or under the new process due to be available from August 2021. This way neither party has to be blamed for the breakdown of the marriage which can avoid a lot of acrimony.
The advantages of a separation agreement
A separation agreement has many advantages. Firstly, it can set out financial arrangements and what is intended should happen to property that is held now as well as assets acquired in the future after separation and is advantageous even if you have little or no capital at the time of separation.
There have been a number of cases in the past few years where, even decades after separation, a financial claim was made by a former spouse or civil partner. For example, in the case of Wyatt v Vince the wife applied for financial relief some 18 years after divorce. During the time of separation Mr Vince had founded a successful green energy business and Ms Wyatt was successful in obtaining a small lump sum award despite the lapse in time.
Your agreement can also be used during your divorce or dissolution court proceedings to seek a consent order for a more creative arrangement in dividing your assets. For example, you may be very keen to protect a pension and may be prepared to offset your spouse or partner’s interest in this pension by offering them a larger interest in the matrimonial home.
When you enter the court arena, this type of bargaining and offsetting
is can be taken out of your hands while a separation agreement would allow for this flexibility.
Finally, after separation, spouses and civil partners may be entitled to maintenance. Ifmaintenance is paid it is normally each month by the higher earning spouse to the lower earning spouse and helps you to adjust to your new life after separation. A separation agreement can also outline what if any maintenance will be paid.
Separation and cohabiting couples
If you have been cohabiting with your partner without getting married or entering a civil partnership, then there is no one piece of legislationwhich deals with separation and you may be surprised to know you have no automatic rights.
A separation agreement can detail your arrangements to provide both with some reassurance.
Cohabiting partners may have joint assets and liabilities and should seek to reach agreement over the division of their assets. We can assist you in advising which documents need to be shared with your former partner, and what is a fair division of the assets. If an agreement can be reached, we will draft the document to ensure your interests are protected as far as is possible. Prior to entering any separation agreement, it will be necessary for you to make a full disclosure of your assets and liabilities to your partner. They will be expected to do likewise.
If a settlement cannot be agreed amicably, then it may be necessary for you to formulate a civil claim in court against your former partner.
For example, this could be to ask the court how the family home should be divided, which may be problematic if the house you cohabited was only in one of your names legally. It is important that you obtain early legal advice in this scenario in order that the best case can be formulated for you, and your interests protected.
Who does not need a separation agreement?
Not everyone will benefit from a separation agreement. If you have been cohabiting, and you had no children together or no shared financial assets such as a house, then you may not require any formal separation agreement. However, if you are unsure, it is always wise to seek some preliminary advice.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.