Separation Agreements


For some couples who separate, they are just not ready to bring an end to their marriage through a divorce or dissolution of their civil partnership.

Many prefer to wait to allow a “period of reflection” or delay taking action for two years so that they can present a divorce petition to the court on grounds of two years’ separation.

While waiting may seem the most non-confrontational option, it does come with risks, namely lack of financial certainty and security.

What is a
separation agreement?

A separation agreement entered into by both parties is an agreement setting out how the couple’s assets should be divided and whether there should be any ongoing financial support. The agreement can be tailor made to the couple’s individual circumstances and can include for example who is to pay certain debts or how chattels are to be divided.

Is a separation
agreement binding?

While separation agreements provide a better option then nothing, it is important to remember that they are not binding.  However, if the separation agreement has been properly drawn up with full financial disclosure and certain other safeguards have been met (e.g. the agreement does not unduly prejudice one party,

there has been no pressure put on either side to go along with the agreement) then the court could hold the parties to it unless their circumstances have changed substantially since the agreement was signed.

Advantages of a
separation agreement

  • An early agreement made regarding the financial settlement can (if things go according to plan) provide a sound basis for the ultimate financial consent order that should be presented to the court once the divorce or dissolution has reached the appropriate stage.
  • Entering into a separation agreement is far less uncertain that simply deferring the question of the financial settlement until the divorce proceedings are initiated two years (or more) post-separation, if a couple has decided that they do want to wait for two years before getting divorced.

Disadvantages of a
separation agreement

  • A separation agreement will not achieve finality in same way as a financial consent order approved by the court on a divorce. The existence of a separation or maintenance agreement cannot prevent either party making a further or differing application for a financial order if or when divorce proceedings are underway, though it could limit their potential to get something different from the agreement.
  • A lot can happen in two years (or more) between separation and divorce.  One of the parties’ incomes could change substantially or they could become ill or bankrupt. If the divorce is initiated at the time of separation, a financial consent order can be put in place, bringing about certainty and finality for the couple’s finances and protecting them from the ups and downs of each other’s financial lives.
  • There is a lack of closure. Even with a very good separation agreement, the couple will still have to revisit their financial settlement at the point of divorce and, at the very least, make arrangements for it to be converted into a court order to ensure the settlement is binding.



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