A Separation Agreement is a legally binding contract by which parties agree to live separate and apart.
Types of Separation
When a marriage or civil partnership ends, there are things that need to be decided such as the division of any property and money; where everyone will live, how much time the children will spend with each parent, where that will happen, and how shared parenting will work.
There are two main ways to affect a legal separation:
- Legal Separation by Agreement: where agreement is reached on the matters listed above (with our without mediation), or
- Judicial Separation: where a judge makes the decisions on these areas following legal representation by both parties.
- Legal Separation by Agreement
A legal separation allows the parties to agree fundamental issues relating to their separation and to make these legally binding. Where both parties can communicate well enough to come to agreement about what they want for their family, this considered best. It is generally less acrimonious, less stressful for everyone involved, and less expensive than a judicial separation. Agreement can be reached through mediation, through collaborative law, or, if this is not possible for some reason, through correspondence using solicitors. Mediation is considered to be particularly helpful for making arrangements for parenting and for drawing up parenting plans.
See our section on Mediation for more information on how that works.
Once agreement is reached on the main areas, the solicitors will write up a separation agreement which s a legally binding contract. The actual document is called a Deed of Separation. The main issues covered in a deed of separation are:
- Agreement to live apart;
- Agreed arrangements about custody and access to children (where they will live and when the parents will spend time with them);
- Ownership and occupation of the family home, where it is owned or mortgaged, and any other property;
- Maintenance payments, and any division of shared assets and monies where they exist;
- Indemnity from any debt of the other spouse/civil partner – this means that neither party can be held responsible for any debts the other person may have after the separation.
- How any pensions held are to be managed;
- Succession or inheritance rights, and
Making the Separation Agreement Enforceable
The separation agreement can be made a Rule of Court by applying to the court. This means that if the parties to the agreement do not abide by it, they can be taken to court to have any part of the agreement enforced. Information on making a separation agreement a rule of court is available on the Courts Service website.
How a mediated separation becomes a legal arrangement
Once agreement is reached on the main areas, the mediator will provide a report detailing the agreed items. This report is then taken by each party to their solicitor and forms the basis for a the Deed of Separation which can be made into a Rule of Court.
- Judicial Separation
Where agreement is not possible, separation arrangements will be decided on, and ordered by, the courts. This means that each side will make the case in court, through their legal representation, for what they would like under the various headings. Ultimately, a judge will decide what happens for the family under each heading, including how parenting arrangements, including access and custody, will work.
There is scope for the Judge to take account of the views of any children by the use of experts who may be asked to meet the children, listen to their wishes, and make recommendations about what should be done. There is information on court reports in the Court Reports section of our website.
Deeds of Separation may be used as the basis of a divorce should the people involved wish to divorce at a future date.