Guide To Our Separation Agreement Template

Posted by Stephen on 12th October 2015

This is the guide to our Separation Agreement template. Use this template where a married couple are separating or have already separated, but are not yet getting divorced (neither has yet issued a divorce petition) and they have reached agreement over the main issues:

  • finance – maintenance;
  • dividing their property; and
  • contact with the children.

You can also use this template as a discussion point, to ensure you cover the key issues. So it helps you when discussing, as a couple, how to go about sorting out your arrangements for the separation. Then record them using the template, once you have reached agreement.

You can use this template where you are yet to reach agreement, but want to sign an interim agreement. Such an agreement could be varied later, when you have finalised your financial and other arrangements. The notes below show which clauses you should or should not use in such a case (see the note on clause 17 below).

Using our Separation Agreement template

Our Separation Agreement template incorporates various options, so it is appropriate whether:

  • you own the family home (together or in the name of one of you) or you rent it;
  • one party is paying any maintenance or not;
  • you have a mortgage or not;
  • one or both of you have already retired or not;
  • you have children or not; or
  • there is a family-owned company that needs sorting out as part of the separation.

It is very useful to use this Separation Agreement template where the parties:

  • marriage took place less than one year ago, and so cannot yet issue divorce proceedings because of the one-year rule; or
  • intend to use one of the divorce reasons that requires separation for 2 or 5 years and have not yet reached that period of separation.

This template is not appropriate for use where:

  • one party has issued divorce proceedings. (Unless you are happy to use it bearing in mind that it may not be in place for long.); or
  • the couple splitting up is an unmarried couple (i.e. cohabiting).

Guide to optional clauses

Many of the clauses in this Separation Agreement are optional, as the template seeks to cater for many different eventualities. Therefore, not all of the clauses will be relevant to every couple. Once completed, the clauses that do not apply to you would have been deleted. So the final agreement should be a quite a bit shorter than this template’s starting point. The guide notes below highlight which clauses in the Separation Agreement template are optional and may not be needed by you.

Some of the issues are complex (such as pension sharing or splitting – see clause 21). Seek professional advice on areas like pensions that might be outside of your competence or comfort zone.

Here’s what the Money Advice Service have to say about separation agreements.

Non-binding on the court in the event of divorce

Separation agreements are not currently legally binding in England and Wales. So the court could overturn one (a) if the parties later divorce or (b) if one party seeks to enforce it due to breach by the other. Child maintenance can also be varied by the Child Maintenance Service (‘CMS’) and you cannot limit its jurisdiction.

The UK courts have a wide jurisdiction to make financial and contact arrangements for the divorcing couple. That said, if the court is happy that the arrangements are sensible and fair, the courts do not look to rewrite appropriate agreements just for the sake of it. Until any such overruling by a court, the couple should treat the agreement as binding.

As a basic guide, a court is less likely to overrule a separation agreement that has been made:

  1. after each party has made full and frank disclosure of all his or her assets;
  2. when both parties have had the benefit of good legal advice;
  3. without any duress or undue influence (force or improper pressure);
  4. without mistake or misrepresentation;
  5. that makes a fair division of the assets; and
  6. where there has since been no material change in either’s circumstances that would undermine the basis of the agreement.

Taking legal advice

If one or both parties don’t take legal advice on the agreement before signing it, then the courts may think it has not been made fairly. As a result, they will be more likely to overrule it if, with hindsight, any aspects of it appear unfair or inappropriate to the court.

We provide this template to you to assist in your making your own arrangements and saving on legal fees. With this in mind, we advise you:

  1. firstly, to draw up a draft that both of you agree on; and
  2. secondly, to ensure that both spouses take independent legal advice on the document.

This is particularly important in respect of pension sharing or splitting issues. However, this will still represent a very significant saving on legal fees for you both, as you will not have paid the lawyer to draw up most of the document.

Guide to Clauses in this Separation Agreement Template

This is an excerpt from the guide to our separation agreement template, showing the key provisions. You receive the full guide when you purchase the separation agreement template.

Date – Insert just the year at this stage.  Handwrite the rest of the date in the agreement once all the parties have signed it.

Party clauses – You will need to insert the names and addresses of the couple here.

Background

(A) Fill in (a) the date of your wedding, and (b) whether there are any children in the family. This means children born of this relationship or previous relationships. It includes any who are now over the age of 18. If there are such children, list their details: add extra rows if needed and delete any rows not needed.

(B) Fill in which wording is correct depending on whether you have separated already or are about to.

Guide to Numbered Clauses in the Separation Agreement

1. Interpretation

This clause defines the main terms used in the agreement.

  • Date of Separation – Fill in the date you started living apart. If this is happening now, put the actual date. If it is to happen shortly, put in the planned date. You need this date if you later divorce based on reasons needing 2 or 5 years separation.
  • Former Matrimonial Home – Fill in the address of the (former) family home. Select whether you own it on a freehold or leasehold basis or rent it. If you own it and it is registered land, fill in the Land Registry title number. If not registered or if it is rented property, then please delete this last phrase.

2. Agreement to live separately; scope

Clause 2.1 records your intentions to remain living separately. Clause 2.2 states that you acknowledge the jurisdiction of the court to override this agreement, as noted above, in divorce proceedings. If neither party is to pay child maintenance, then delete the phrase in square brackets in clause 2.2. Clause 2.3 is a promise or warranty that each party has been open and honest in sharing their financial details. those details should be set out in schedule 1. If it later turns out one party has not been honest in a material respect, then:

  1. the other person could sue them for loss;
  2. the court might well overturn the settlement if the other person has discovered the concealment by the time of the divorce proceedings; and
  3. it may lead to criminal liability for fraud if deliberate.

Clause 2.4 states that the parties intend the settlement to be full and final. Delete this if this is not the case. Although the court could overrule it, this clause makes it clear that the parties do not intend that it should or would need to. If one or both of the parties have not had independent legal advice on the terms of the agreement before signing it, then we would advise your not including clause 2.4. Clause 2.5 states that each party will not look to cause trouble for the other.

3. Agreement to divorce

This clause is optional – delete it if you do not want it. If you have reached agreement that you will divorce at a certain future stage based on the reason that requires 2 years separation with consent, then you can record that intention here using clause 3.1. (Of course if you both change your minds, then this will not be binding.) Clause 3.2 seeks to ensure the parties do not apply to court to vary this agreement in the divorce proceedings, although you cannot stop the court rejecting that and varying it anyway for the reasons set out above. If one or both of the parties have not had independent legal advice on the terms of the agreement before signing it, then it would not be advisable to include clause 3.2.

4. Contact

If there are no children still under 18, then you do not need this clause – please delete it. If you have children who have not reached the age of 18, then complete this clause with whatever contact and living arrangements you have agreed. Fill in the first sentence as applicable. Think about the following issues:

  • How frequently the contact will be.
  • The timing of contact – start and finish days and times.
  • Whether longer periods of contact will apply during school holidays and whether this alternates annually.
  • Whether you alternate contact annually at Christmas.
  • If there is any neutral location that the children will be picked up and dropped of at, particularly if the distance between the respective parents’ homes is significant.

Add any other specific issues you agree on. (See clauses 15.2 and 15.3 for provisions for maintenance payments for the children.)

5. Transfer of family home

This clause is optional – delete it if you do not want it. You can use this clause to record that one spouse has already transferred the home to the other spouse. This  applies whether the house was originally:

  1. in the sole name of the transferring spouse; or
  2. in joint names.

Fill in the relevant details.

If a party is transferring it subject to an outstanding mortgage, you will need to arrange for the mortgage to be put into the sole name of the spouse receiving the property. Banks generally require a fresh mortgage application for this and you will need to ensure the spouse applying for the new mortgage has sufficient income to justify the mortgage on his or her own. If you have not yet transferred the property, but will do so shortly, then use clause 7 instead.

6. Sale of the family home

This clause is optional – delete it if you do not want it. You can use this clause to arrange to note that you have already sold the home and that you have divided the net sale proceeds between the couple. Fill in the relevant details as to when you sold the home and how you split the sale proceeds. If you are yet to sell the property, then use clause 8 instead.

7. Transfer of Former Matrimonial Home

This clause is optional – delete it if you do not want it. The clause provides for one spouse to transfer his or her interest in the home to the other either as a gift or for a payment. However in relation to a transfer in return for payment, as it may be unrealistic to expect immediate payment and payment by instalments may be difficult, the intention of this clause is that:

  1. you leave the money outstanding as a loan;
  2. the loan is secured against the property; and
  3. the loan is paid off when the parties eventually sell the property.

Clause 7.3 sets out the circumstances under which the property is to be sold.

If no payment is being made for the transfer, then delete clauses 7.3 and 7.4 and the initial phrase in square brackets at the start of clause 7.1. The legal charge referred to in clause 7.3 is a separate document, and an appropriate template is available to buy from Legalo. In clause 7.3 interest at a reasonable rate is to accrue on the debt until it is paid. This should be balanced against the fact that the spouse owed this money will (a) have his or her money tied up for (most likely) a long period and (b) no longer benefit from any increase in the value of the property. Select or fill in the applicable wording throughout clause 7.

If the property is already charged with a mortgage, you may not be permitted to make such a transfer, even if you express it to be subject to the mortgage. See the note on clause 5 above about a fresh mortgage application being required in nearly all cases.

If you are registering a legal charge against the property in accordance with clause 7.3, it will rank after any existing mortgage in terms of priority and you will probably need the consent of the holder of the mortgage to register it (depending on the terms of the mortgage). You should check with the mortgage holder what is possible before committing to this clause.

8. Sale of Former Matrimonial Home

This clause is optional – delete it if you do not want it. You can use this clause to provide for the parties to sell the home split the net sale proceeds between the couple. Select which option you want in clause 8.1.4 regarding who is paying for outgoings on the property (other than the mortgage). Select which option you want in clause 8.1.5 regarding who is paying for the mortgage. Clause 8.1.8 sets out how you divide the sale proceeds: delete clause 8.1.8.3 if either (a) you are not using clause 12 or (b) you do not want to pay off any of the clause 12 lump sum in this way.

9. Occupation of family home

If you have not already included a clause for the sale of the home and it has not already been sold, then you will need this clause regarding the occupation of the home: to state who will occupy it and on what terms.

If a spouse is to occupy a different property instead of the home (where one spouse or both own it), then select the applicable wording on lines 2, 4 and 5 of clause 9.1 and in clause 9.3. Clause 9.1 provides that this right will expire under certain situations: on the remarriage, cohabitation or death of the residing party, if the residing party ceases to reside there (e.g. if they move out and attempt to rent it out to someone else) or when the children have all grown up.

Delete any of these that you do not agree on. Under clause 9.2 this occupation can continue notwithstanding that the non-occupying spouse may have died before the right to occupy it expires under clause 9.1 – he or she needs to make a will that provides for this until expiry in accordance with the terms of clause 9.1. Clause 9.3 states that the parties will not remortgage or otherwise charge the property. Fill in the remaining details in clauses 9.1 and 9.2.

10. Assignment of life insurance policy

This clause is optional – delete it if you do not want it. If you have a mortgage on the home and you were required to take out a life insurance policy, being an “old style” policy (i.e. one that builds up value in the policy and matures to pay out the insured amount on a set date even if the person in question has not died by that date), then you can use this clause to provide that you sell the policy or gift it to one spouse or, if it has not matured by the date the home is sold, then you can assign it to both spouses. Select the appropriate options as to (a) who is to receive it, (b) when and (c) whether it is in return for payment.

11. Capital payment

This clause is optional – delete it if you do not want it. You can use this clause to provide for one spouse to make a cash lump sum payment to the other.

Fill in the relevant amount and who is making the payment. Despite the fact that the clause states that you intend it to cover all such claims, given the court’s overriding jurisdiction, as noted above, bear in mind that this may not be a once-and-for-all payment.

If instead you are paying by instalments, then use clause 12 instead. If the cash sum is coming from the sale of the home, then use clause 6 instead.

12. Lump sum by instalments

This clause is optional – delete it if you do not want it. You can use this clause instead of clauses 6 or 11 to provide that a cash sum is to be paid by one spouse over instalments. This might be from the sale of the matrimonial home if it was in the sole name of one spouse (i.e. the one making the payments).

Fill in the relevant details. If you do not want to provide for a set lump sum to be paid by instalments, but on-going payments of maintenance are required instead (or in addition), then use clauses 15 and 16 for this.

13. Assets

You will need this clause to set out the division of assets other than the home. Even if you have fully divided these by agreement, it is useful to set out what the division was in the event that, when you get divorced, the matter of a fair financial settlement goes to court later, as noted above.

Clause 13.1 deals with the division of furniture and other possessions in the home. Fill in the details of the division in schedule 2 by way of a comprehensive list. If one party has not yet moved all their agreed possessions out, then you will need to keep the second and third sentences of clause 13.1 about access – if not, delete them.

You can use clauses 13.2 and 13.3 to deal with any other assets, e.g. bank balances, vehicles and investments. Clause 13.3 provides for the closing of joint bank accounts: you may need to check the timescale on line 2 with the bank and how quickly you can get a new account open if you need one.

It also tries to ensure that one party does not do anything silly to clean out the account or make significant purchases shortly before this agreement is signed or before you close the account. The parties should check recent use of the account by an up-to-date statement and, if there is a significant imbalance in their use of it, they may wish to agree a different split of the balance other than “equally” as currently stated in clause 13.2.1.

14. Credit and debit cards

This clause is optional – delete it if you do not have any joint credit or debit cards. Check if the timescale on line 4 is OK. The ban on using the cards in the meantime is to avoid one party becoming greedy and deliberately overusing the card.

The parties should check recent use of the card by an up-to-date statement and, if there is a significant imbalance in their spending, they may wish to agree a different split of the charges other than “equally” as currently stated on line 6.

15. Maintenance

This clause is optional – delete it if you do not want it. You can use this clause to provide for the payment of maintenance:

  1. to one spouse; and/or
  2. for the children,

until certain circumstances occur or the court rules otherwise. Again, you cannot oust the jurisdiction of the court as noted above.

If neither spouse is paying maintenance, then delete clauses 15.1 and 15.6. If there are no children under 18 (or 21 if in full-time further education), delete clauses 15.2, 15.3, 15.4 and 15.7. Clause 15.4 is optional, but if one spouse is receiving maintenance under clause 15.1 and the CMS increases the child maintenance payments, then this clause provides that the increase shall reduce the payments under clauses 15.1 and 15.3 (to a minimum of £0 in each case) – if there is no maintenance under clause 15.1, then delete the words in square brackets that refer to it.

The Court’s and the CMS’s jurisdiction

You cannot oust the jurisdiction of the CMS to do this (as noted in clause 2.2). However, you can add in this provision to maintain fairness as far as possible until the court decides otherwise in relation to the overall financial settlement if you get divorced.

It is important that you make proper provision for the children. In divorce proceedings, the court is likely to challenge the agreement if it is clearly inadequate. Fill in the details in the relevant clauses. In clause 15.5 fill in the account details of the spouse receiving payment.

Clauses 15.6 to 15.8 state the circumstances under which the maintenance payments come to an end. Please check you are happy with them. In clause 15.8, if not all of clauses 15.1 to 15.3 apply, delete reference to the ones that do not.

16. Variation of maintenance

This clause is optional, but goes with clause 15 – delete it if you are not keeping clause 15. Clause 16.1 seeks to reduce or increase the level of maintenance under clauses 15.1 and or 15.2 (whichever applies) if there is a significant increase or reduction in the paying spouse’s income. Note it does not vary the payments under clause 15.3. Fill in the relevant details.

Clause 16.2 index-links the maintenance payments to changes in CPI (up or down). You need this in order to maintain fairness if:

  1. the agreement is likely to continue for a significant period; or
  2. the court does not vary the maintenance aspects of the agreement in a future court order.

Clause 16.3 would apply until the court of its own volition (i.e. without the party receiving the maintenance putting in an application for it to be varied) makes a different order in any future divorce proceedings.

17. Agreed interim payments

This clause is optional – delete it if you have reached a comprehensive settlement. If either (a) you have not yet agreed a financial settlement (whether by lump sum or regular maintenance payments or both) or (b) you are not in a position to make a lump sum payment until the home has been sold and that is yet to take place, then you can use this clause. The former might well be the case if it is just a trial separation at this stage. Fill in which of these circumstances applies at the start of the clause and who is making the payments and in what amounts and at what frequencies in clause 17.1. In clause 17.2 you can set out the interim arrangements for payment of the mortgage, if there is one – if there is no mortgage, then delete clause 17.2.

If using this clause, then you will not need clauses 11, 12, 15 or 16. You should also delete clause 2.4. Once you have agreed the final financial arrangements, then you will need to vary this agreement by a deed of variation. The deed will set out what your final arrangements are. At that point, you can use the wording from the relevant clauses you did not use in this template (e.g. 7, 11 and/or 15 and 16) that apply. Slot the necessary wording into the deed of variation.

18. Family business

This clause is optional. Delete it if you do not have a family company in which one spouse needs to transfer shares to the other as part of the terms of the separation. If you need this clause, then complete the details in clauses 18.1.1, 18.1.1.1 and 18.1.1.2. The settlement agreement referred to in clause 18.1.1.3 would ensure that no claim for unfair dismissal, etc could be brought against the company by the spouse who is resigning in accordance with clause 18.1.1.2. A template for such a settlement agreement is available separately from Legalo.

As noted in clause 18.1.4, stamp duty will be payable by the recipient of the shares if the price to be paid in clause 18.1.1 exceeds £1,000. If so, it is payable at 0.5% of the price, rounded up to the next whole £5 multiple. If so, it should be paid within 28 days of the transfer.

19. Life insurance policy

This clause is optional – delete it if you do not want it. You can use this clause to provide for both spouses to take out life insurance for the benefit of the children (even if already adults). If you do not have any children, delete the whole clause. You may wish to use this clause if child maintenance is being paid. Optionally, you could adapt the clause, so that only the party paying the maintenance is to take out life insurance. Fill in clause 19.1.

Note that this clause requires that you take out the more expensive (but valuable) type of life insurance. That is the one that builds up value in the policy (as noted in relation to clause 10 above). Alternatively, if the party paying the maintenance already has a pension scheme that includes a death-in-service benefit, then you should use clause 20 instead.

20. Death in service – member of an occupational pension scheme

This clause is optional – delete it if you do not want it. If a spouse has an occupational pension scheme that provides for a death-in-service (i.e. life insurance) benefit, then you can use this clause instead of clause 19. Fill in the relevant details. If this is not purely to cover a situation where the party paying maintenance under clause 15 dies while still paying maintenance, then delete the last phrase of clause 20.1.1 that is in square brackets.

21. Pension benefits

This clause is optional. Delete it if:

  1. neither party has any pension benefits (other than the basic state pension); or
  2. if your pensions are of equal value (unlikely perhaps).

When checking what values your respective pensions have, you need to ask your pensions companies for the “cash equivalent transfer value” of the pension fund. In the event of an imbalance, you can deal with balancing out pension benefits in various ways.

You cannot divide your respective additional state pension. Instead you have to take a larger amount out of another pension fund to allow for any imbalance.

Options for splitting your pensions

The following options apply if the pension fund has not yet been draw down on (because you are not yet retired):

  • pension sharing – see clause 21.5 and the note on it below. This entails dividing one pension fund into 2 separate funds;
  • making a balancing payment out of the couple’s other assets to cover the difference. See the note below on this;
  • obtaining a pensions attachment (or earmarking) order from the court. this means that when the pension is eventually drawn the proceeds are shared at that point. This is not needed if you can agree on one of the above solutions instead. Because of this, we have not provided for this option in this template.

If the pension is already being paid (as the holder of the fund has retired and started drawing from the fund), then the solution is more complex, as the value of the pension benefits needs to be assessed by an actuary – this will include an assessment of the life expectancy of the pensioner. You will need to pay for this and take professional advice.

A maintenance payment until death could be used. For this you could use clause 15. If you do, then delete clauses 15.2, 15.3, 15.4, 15.6, 15.7 and 15.8, and do not use clause 16. This may be sufficient on its own if, when the pension was drawn down on, the pensioner opted for a widow’s/widower’s pension to continue after his or her death. If no widow’s/widower’s pension was chosen, then you would need to use clause 11 or 12. This is suggested below, and will cover paying out the actuarial difference in your respective pension benefits.

If, before a pension has been drawn down, pension sharing is needed or agreed on, then clause 21.5 can be used. Although you might both agree to split a pension fund, it cannot actually be done without a court order. The court order will arrange for a cash sum to be taken out of one pension scheme and moved to another. This is as referred to in clause 21.5.

Alternatively, you can arrange for any imbalance in the spouses’ pension plans to be balanced. This can be done without the need for such a court order. You would do this by arranging a lump sum or payment by instalments in the separation agreement. In such a case, delete clause 21.5 and instead use clause 11 or 12 – in which case, add an additional clause at the end of clause 11 or 12 as follows: “It is intended that the payment provided for by this clause includes a payment of £[SUM] in respect of the difference between the cash equivalent transfer values of the pension schemes and/or actuarial valuations of the pension benefits (as applicable) to which the Husband and Wife are respectively entitled.”, and fill in the amount of the difference.

22. Agreement to leave by will

This clause is optional – delete it if you do not want it. If you have agreed that provision should be made to pass assets to the children by your will, then:

  1. you can use clause 22.1 to refer to that as being a binding agreement; and
  2. make a new will that implements this obligation (if your current will does not do so).

In any case, both spouses should consider making new wills now. If they do not yet have wills, then they should make their first wills. If you died while you remain married, most if not all of your assets would pass to your spouse on your death. This would be under the rules on intestacy, unless you have made a will that provides otherwise. You may not want that to happen after separation.

The effect of divorce on existing wills

On divorce, any gift to your former spouse that was in a will that was made prior to your divorce becoming final will take effect as if your former spouse had died on the date your divorce decree became absolute (i.e. final). Generally this means the gift becomes part of your “residuary estate” for the benefit of the residuary beneficiaries. By then this will not include your former spouse. Any clause appointing the former spouse as executor of your will or as a trustee of a trust is invalidated. For any trust, this might invalidate the whole trust. So generally you will need to make fresh wills again then (but this rule does not apply on separation). (Suitable wills templates are available separately from Legalo.)

Clause 22.2 provides that each party will not claim any further inheritance from the other under the Inheritance Act. You may wish to include this clause even if you do not want clause 22.1.

23. Tax indemnity

This clause makes it clear that the parties will deal with their own personal tax affairs. If there are any unusual transactions, then you can include the wording in square brackets at the end of the relevant clause 23.1 and/or 23.2.  For example, this might be the sale of investments incurring capital gains tax that has not yet been paid.

24. Non-disclosure of information

This is a confidentiality provision, so that the parties keep the details of this agreement to themselves.

Schedule 1

Insert the details here of the parties’ respective financial details. Full and frank disclosure should be made. If not, the court will most likely change the financial arrangements if on divorce. Also the party hiding their assets will be defrauding the other. They will be liable (a) to be sued by the other and (b) guilty of the crime of fraud. Delete subheading 6 if there are no other relevant details.

Schedule 2

In accordance with clause 13.1, insert the details here of the way in which the property in the family home is being divided.

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