Do you need a separation agreement before deciding to divorce?

8th March 2015 by


It is possible for married couples to separate under English and Welsh family law without having to seek a divorce.

Couples who don’t feel ready to legally end their marriage may wish to draw up a separation agreement – and Healys’ separation lawyers can advise you on all the required formalities.

To find out more about how our solicitors can help you decide whether a divorce or formal separation is right for you, please click here.

What’s the difference between formal and judicial separation

You can apply to a court for a judicial separation for the same reasons you might apply for a divorce, such as adultery or unreasonable behaviour. Unlike a divorce, however, you don’t have to prove to the court that the marriage has broken down irretrievably.

There are a number of reasons why divorce may be inappropriate, for instance you may have strong religious beliefs which forbid divorce, or you may have been married less than a year. You may just feel you are not ready to formally end your marriage but want to have a legal framework in place which recognises your decision to live apart.

In a formal separation the spouses will draft an agreement to specify certain financial arrangements, such as those relating to children or how property will be divided. However, this will not need to be ratified by a court.

It is advisable to obtain advice from independent separation lawyers to help get such a document drafted, and you may wish to agree many of the details before you seek legal advice. While such an agreement is not legally binding or enforced by the courts, it can be extremely useful in further proceedings should one spouse renege on the agreement.

It can also be used as an aid during a financial settlement claim on divorce.

What do we include in a separation agreement?

You might want to include some, or all, of the following items, such as:

  • An agreement that you will live or have lived separately from a designated date.
  • An agreement regarding who children of the marriage will live with and how contact with the absent parent will be arranged.
  • An agreement that each spouse will not molest, disturb, or annoy the other.
  • Provisions for financial support (spousal maintenance).
  • The halting of spousal maintenance should the partner in receipt commence living with someone else.
  • Provision for child maintenance.
  • Provision for division of any assets, such as the family house.

It is important to note that any agreement between the spouses specifying that they shall not go to court or apply to the Child Support Agency at a later date will not be legally binding, and either spouse has the right to apply for a court hearing regarding these matters at any time.

Are you confused about separation agreements?

If you are unclear about whether a separation agreement is suitable for your circumstances, please contact our family law and matrimonial departments in London or Brighton to see how we may be of assistance.

Our separation lawyers have many years’ experience in offering creative, pragmatic legal advice to clients involved in separation and divorce. We will listen carefully to your personal situation before giving our considered view of how we can best help you protect your interests under English and Welsh family law.

Call or email Healys today. We are here to help.