What is a Separation Agreement?

Separation is hard for any couple. But going through drawn-out and fractious court proceedings can substantially add to the levels of stress and anxiety felt by everyone involved. A Separation Agreement can help with this and is the first step in the divorce process.

It is a formal legally-binding document that sets out what you and your ex-partner agree on and it can be prepared by married couples, civil partners and cohabiting couples when they decide to separate. It sets out how they will share assets and liabilities between them and can be enforced in the same way as a court order. It relies on both parties providing full disclosure of their finances and can cover things like:

• what is to be done in the event of the death of either party
• what is to be done if the agreement is breached
• What happens in the event of re-marriage or co-habitation by either party
• who pays the mortgage or rent and any bills
• who lives in the family home and what happens if it's sold
• what happens to any debts, like loans or credit cards
• what happens to savings, ISAs or any other type of savings
• what happens to things like cars or other things you might have bought together
• whether payments are made by one of you to support any children
• who looks after your children and where they will live

You can create an agreement if you and your ex-spouse or ex-partner are thinking about getting divorced or dissolving a civil partnership. Having an agreement in place means that you will not need to ask the court to sort out your finances and arrangements for the care of your children when you seek a divorce or dissolution. Cohabiting couples can make a Separation Agreement when they decide that they will no longer live together.

If you want to make a separation agreement you can use a solicitor to draw up formal papers, called a 'minute of agreement'. These set out what you agree with your partner. The solicitor will register these with the Books of Council and Session.

You can help to reduce what you pay a solicitor by writing down, in detail, the things you agree with each other and giving them to your solicitor.

If you or your ex-spouse or partner cannot agree then you can seek help from a mediator or a specially trained Collaborative practitioner. Collaborative Practice is a non-confrontational approach to agreeing the legal, financial and practical arrangements for your separation and divorce. Spearheaded by a lawyer who will be trained in collaborative law and who can involve other professionals like financial advisors and family consultants to resolve specific issues. They can help you talk about things to help you both agree what you want to do.

Find out more about how the Collaborative approach might be able to help you.