Legal advice for separating couples

There are a wide variety of situations where couples decided to separate. In some cases a separation agreement is really important and others where it might not be worth getting an agreement on a cost/benefit/risk basis.

The deep experience our family lawyers have means we can help you decide whether you need an agreement and if so, what it should include. With over 50 family lawyers in many locations in England & Wales and more than 10 offices in London alone, by contacting us you can choose the right lawyer in the right location at the right cost for you.

What to include in a separation agreement?

Generally speaking, the starting point will be considering and negotiating on:

• Division of Assets - The agreement should specify how the couple's assets, such as property, savings, and investments, will be divided.

• Spousal Support or Maintenance - An agreement should specify whether either spouse will pay spousal support or maintenance to the other. If so, it should specify the amount and duration of the payments.

• Child Care Arrangements - The arrangements for the care of any children, including custody, visitation, and child support.

A key thing to understand is that a separation agreement is a contract and, on the face of it enforceable, but in reality, except under limited circumstances (see below) it isn’t possible to take immediate and meaningful action if the other party breaches the agreement. On divorce, the court would take into account the terms of your separation agreement.

Things we find clients benefit from considering include:

• Are you married or not? If separating and not married, it is very difficult to enforce breach of any financial commitments by the other party, such as maintenance payments.

• Will the separation will be long term or not? If you are married, you may want to rely on two years separation as grounds for your divorce.

• Are you both liable on the mortgage? If there is a default, you will both be individually liable for the full arrears so should consider this in a separation agreement.

• Is the time right to consider and include in a separation agreement who will live in the property and long term financial issues based on the separation?

Financial disclosure

In terms of enforceability and relevance in any subsequent divorce proceedings, before finalising as separation agreement, both parties need to make full disclosure on all financial matters. Ideally, both parties will also have received legal advice.

Enforcing a separation agreement

Enforcement depends primarily on whether you are married or unmarried. To enforce the financial aspects if you are married you can make an application to the court separation if you are married you would normally apply to the court for a financial order.

For unmarried couples, the only method for taking legal action for breach of financial aspects of a separation agreement is a county court claim for breach of contract, which will likely be a slow and frustrating process.

A number of our lawyers are members of Resolution and Accredited Family Law specialists at The Law Society.