Changes in the way that couples divorce have resulted in separation agreements between spouses becoming much less common than they once were.
A separation agreement (also known as a Deed of Separation) contains the terms of a financial agreement reached between a married couple or a couple in a civil partnership) who have separated, but who are not intending to divorce immediately or at all. They may also contain a timetable for an eventual divorce or civil partnership dissolution. (As the law now applying to civil partnerships is effectively the same as divorce, for the sake of simplicity I will only refer to marriage and divorce from now on, but it all equally applies to couples in civil partnerships and dissolution cases).
It is increasingly rare for solicitors to be instructed to prepare one nowadays. In some ways they are a throwback to an earlier time, when to get a divorce immediately you had to cite adultery or behaviour by your spouse (or just behaviour in a civil partnership dissolution, where for some reason an adultery dissolution was not possible). If you wanted to have what was effectively a no-fault divorce, you had to wait until you had been separated for at least two years and then end the marriage with the consent of your spouse or after five years without consent.
Separation agreements tended to be used mostly in cases where the couple had decided to separate for two years and then to divorce, with consent. If they managed to agree financial terms, their solicitors would draw up a separation agreement and then implement the deal. If they could not reach an agreement and needed to apply to the court for a contested financial remedy order, a divorce petition would have to be issued at the court. The court cannot make a freestanding financial order, even where the terms are agreed. There has to be a divorce order (or a judicial separation order, which are vanishingly rare).
I have noticed that they were becoming less common for some years. Fewer and fewer people wanted to wait for two years before divorcing, plumping instead to bite the bitter bullet of a behaviour divorce, making allegations of unpleasant behaviour by their spouse who would then deny them, but agree to not defend the divorce. They would then seek a financial consent order from the court incorporating their financial agreement.
In April 2022, proper no-fault divorce arrived. Since then separation agreements have become even less commonplace. It is no longer possible to cite adultery, behaviour, desertion, two years’ separation with consent or five years’ separation. The only way to get divorced is on a no-fault basis.
Couples no longer needed to separate for two years if they wanted an amicable divorce, so they stopped needing separation agreements.
There were always problems with separation agreements. Firstly, a separation agreement was only ever an interim arrangement designed to tide the parties over until they could get divorced and seek a financial consent order from the court, reflecting the terms of their agreement. It is essential that the court makes a financial consent order, even where a couple had a separation agreement and have fully implemented its terms. This is because the financial consent order will contain clean break clauses, preventing or restricting any further financial claims by the parties (apart from child maintenance)
The separation agreement was not necessarily legally binding. If one party was not prepared to comply with it, the court could potentially overturn the agreement and impose an order providing for a different financial outcome, if it did not consider that the terms were fair or met the parties or their children’s needs.
This was rare where agreements were professionally drafted by solicitors, but it could happen, particularly where one party had not received legal advice on the agreement before entering into it and had agreed to something that did not meet their needs or achieve fairness. (Self-drafted separation agreements were particularly vulnerable to this. Clients would often and show me a self-drafted agreement they have prepared and both signed. Quite aside from the poor and confused drafting that usually appears in these amateur documents, the lack of any legal advice beforehand is generally fatal to its chances of being upheld by a court).
Secondly, there was the additional expense of drawing up the agreement, as well as then having to get the court to make a financial order when the divorce happened two years later.
Thirdly, if the agreement between the parties included pension sharing, there was the problem that this can only be achieved by a pension sharing order, made as part of a financial order by the court. It is impossible to share a pension without a court order for it to happen. If they agreed that a pension would be shared, then they could not implement that part of the agreement until the court had made the pension sharing order and the final order (formerly known as a decree absolute) in the divorce.
So, separation agreements have gone into perhaps terminal decline. However, there are occasions when we might still use them.
There are some spouses who separate permanently, but do not wish to divorce. They would benefit from a separation agreement, regulating the financial terms agreed between them.
The other category of people who should use a separation agreement are people who have managed to reach an financial agreement at an early stage, and who need to implement it as soon as possible, e.g. before they lose the buyer for their house or a mortgage offer expires). These people are often faced with the problem that the court cannot make a financial consent order until after it has pronounced the conditional order in the parties’ divorce.
It takes about six to seven months to get a conditional order, due to the time that it take the court to issue a divorce application, then the new no-fault divorce law’s (arguably pointless) 20 week waiting period and, and the time that it then takes to make the conditional order.
As the court takes about a month to approve and make financial consent orders, this means that the earliest date upon which the court is likely make a financial consent order is about a month after the conditional order is made in the divorce.
A separation agreement can be used to bridge the gap between the agreement being reached and the court making a financial consent order. The parties can execute the agreement and then proceed with whatever part of their financial agreement that cannot wait until the court makes the order.
Separation agreements are still very important in another area of family law; cases where cohabiting couples are separating. (Cohabitants someone refer to their relationship as being a partnership, but it should be noted that they are not in civil partnerships, which requires registration and a ceremony before a Registrar of Births Deaths and Marriages).
The law does not provide a formal way in which to end those relationships, although it is anticipated that the law may change and that enhanced or possibly even the same rights as divorcing couples may be introduced for cohabiting couples. Unless a reform in the law allows them to seek a free-standing financial consent order from the court, they will still need to use separation agreements.
1 December 2025
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