The number of unmarried couples living together in England and Wales has increased significantly over recent decades, yet many people remain unaware that the law does not provide cohabiting couples with the same legal protections as those who are married or in a civil partnership.

A common misconception is the belief in the existence of a common law marriage, where couples assume that simply living together for many years creates the same legal rights as marriage. Unfortunately, this is a myth, and it can leave separating couples facing unexpected financial and legal difficulties.

When an unmarried relationship ends, there is no equivalent of the divorce process to determine how assets, liabilities, and responsibilities should be divided. Instead, disputes are often governed by property law, contract law, and trust principles, which may produce outcomes that one or both parties consider unfair.

A separation agreement can provide clarity and certainty at what is often a highly emotional time. While it cannot solve every issue or guarantee that disagreements will never arise, it can provide a structured framework for resolving financial matters and significantly reduce the likelihood of future conflict.

What is a separation agreement?

A separation agreement is a written document that records the arrangements agreed between unmarried couples following the breakdown of their relationship. It sets out how various financial and practical issues will be dealt with after separation and provides evidence of what both parties intended at the time the agreement was made.

Unlike divorce proceedings, there is no court-approved financial order available for unmarried couples who separate. A separation agreement therefore fills an important gap by documenting the parties’ intentions and helping them move forward with certainty.

Every agreement should be tailored to the individual circumstances of the couple. No two relationships are identical, and neither are the financial arrangements that arise following separation.

What issues can a separation agreement cover?

One of the main advantages of a separation agreement is its flexibility. It can deal with a wide variety of financial and practical matters, allowing couples to agree solutions that suit their individual circumstances.

Common issues include:

  • Ownership and sale of the family home
  • Division of savings and joint bank accounts
  • Responsibility for mortgages and other loans
  • Allocation of household debts and credit card liabilities
  • Ownership of vehicles and valuable possessions
  • Responsibility for pets
  • Repayment of money loaned by one partner to the other
  • Future financial arrangements while property is being sold
  • How jointly owned furniture and personal belongings will be divided

The agreement can also include practical arrangements, such as who will remain living in the property until it is sold, how household bills will be paid during any transition period, and what steps each party will take to implement the agreed arrangements.

Where children are involved, parents can also record their intentions regarding day-to-day care arrangements and financial responsibilities. However, any provisions relating to children cannot override the powers of the court, which will always place the child’s welfare above any private agreement between parents.

When should a separation agreement be prepared?

A separation agreement is generally most effective when both parties have reached a stage where they are willing to negotiate calmly and openly. Preparing the document shortly after separation often helps prevent misunderstandings before positions become entrenched.

Waiting several months before dealing with financial matters can sometimes create unnecessary complications. Things like bank accounts may change, assets may be sold, debts may increase, and memories of earlier discussions can become inconsistent.

This does not mean couples should rush into signing an agreement before they fully understand their financial position. Both parties should have sufficient time to consider the proposed arrangements and obtain appropriate advice before committing themselves.

In some situations, a separation agreement can even be prepared while both individuals continue living under the same roof if financial circumstances make an immediate move impossible.

Is a separation agreement legally binding?

Unlike a court order made during divorce proceedings, a separation agreement is not automatically legally binding simply because both parties have signed it. However, that does not mean it has no legal value, and the courts will often attach considerable weight to a carefully prepared agreement where:

  • Both parties entered into it voluntarily
  • There was no pressure or undue influence
  • Each person understood the nature and consequences of the agreement
  • There was full and honest financial disclosure
  • The terms are fair and reasonable
  • Both parties had the opportunity to obtain independent legal advice

Although every case depends on its own facts, a well-drafted separation agreement can become persuasive evidence if legal proceedings are later issued regarding property or financial disputes.

Why independent legal advice is important

Independent legal advice benefits both parties, even where they remain on good terms. A solicitor can explain the legal implications of the proposed arrangements, identify any potential problems, and ensure the agreement accurately reflects what has been agreed.

Without legal advice, one party may later argue that they misunderstood the agreement or did not appreciate its consequences. Such arguments can reduce the weight a court is prepared to place upon the document.

Independent advice also shows that each individual had the opportunity to make informed decisions before signing.

Although obtaining separate legal advice involves some additional cost, it often represents a worthwhile investment when compared with the expense of resolving disputes through litigation months or years later.

What are the limitations?

Although separation agreements offer many advantages, they are not a complete solution in every case. For example, they cannot create legal rights that do not otherwise exist under the law. In addition, an agreement cannot prevent a court from considering matters relating to children if doing so is necessary to protect their welfare.

If one party deliberately conceals significant assets, provides misleading financial information, or signs the agreement under pressure, the agreement’s effectiveness may be substantially reduced.

Where complex property ownership issues arise, particularly where one person claims a beneficial interest in a property owned solely by the other, additional legal proceedings may still become necessary. Likewise, disputes involving trusts, business interests, or substantial assets may require specialist legal advice beyond the scope of a simple separation agreement.

If you would like advice on a separation agreement, please contact our team today. We can provide tailored legal advice to help protect your interests and assist you in reaching practical, legally robust arrangements following the breakdown of your relationship.

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Co–Habitation Scenario

The scenario below does not relate to any individual clients of ours but the facts and the outcomes relate to some similar experiences in our practice.

The Scenario

Mr R separated from his partner of 10 years with whom he had a five year old son. Their apartment was in her name. This came about because he was working abroad when they began their relationship. He paid half the purchase price into his partner's account and she completed the purchase paying the other half. Now she had the property up for sale.

Our Solution

We took detailed instructions and put a block on the title. We then located the evidence to prove his claim. He offered to buy out his partner but she then insisted the apartment was worth more than the price she had been offering it for sale. We issued an application following which the property was professionally valued and Mr R bought the remaining half share. She then refused to let Mr R see their son. We obtained a declaration of parental responsibility and visiting rights for Mr R.

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About The Team

We are a specialist divorce and international divorce family law team, advising clients in the United Kingdom (specifically England and Wales) and throughout the world. We have a very people–orientated approach to working with clients. Henry Brookman has practised law for over 45 years, and our team has a wide range of skills and expertise. We are recommended by the Legal 500 and have been awarded the Law Society’s quality mark, Lexcel.

Partner

Philip Morton

Recommended by The Legal 500, Philip is an expert in all areas of family law, including domestic and international financial disputes, fraud and commercial dispute resolution.

Partner

Henry Brookman

With over 45 years' experience, Henry Brookman is the senior member of the team. He is described by The Legal 500 as ‘shrewd, savvy, sagacious and highly experienced’.

Partner

Natasha Slabas

Expert in all areas of family law, often involving cases that have an international element, including work in relation to financial settlements following divorce.

Partner

Mark Rennie

Mark is the Group Head of the Horsham Family Law team. He specialises in all areas of matrimonial law, including complex divorce and financial disputes, and is recommended by The Legal 500.

Partner

Nigel Winter

A highly experienced solicitor, Nigel has expertise in collaborative law, divorce, contested litigation, relationship agreements, and children matters. Nigel is recommended by The Legal 500.

Partner

Samantha Jago

Partner at our Guildford office and recommended by The Legal 500, Samantha has specialist expertise in divorce, children matters, complex international cases, and is a trained mediator.

Partner

Joanna Potbury

Family law specialist based in Brighton advising on divorce, cohabitation agreements, children, post-nuptial agreements, and domestic violence. Joanna is recommended by The Legal 500.

Partner

Kevin Danagher

Kevin specialises exclusively in family law, advising on all aspects of relationship breakdown, divorce, same sex marriage, marital agreements, and international family cases.

Partner

Ella Welsby

Known for her sensitivity and discretion combined with significant expertise, Ella advises on all family issues including high-value and multi-jurisdiction divorce and complex financial and children matters.

Partner

Gemma Garrett

Based in Horsham, Gemma is a specialist advising on all areas of family law including divorce and separation (often involving jurisdiction issues), complex financial matters, and children matters.

Partner

Alicia Cenizo

Alicia is a Partner in the family team and advises on all elements of family law, particularly private children work, including matters with an international element such as relocation.

Partner

Rachel Osgood

Rachel specialises in financial claims on divorce and separation with a particular emphasis on high value cases and those involving inheritances, family businesses and claims by adult children.

Partner

Nisha Tayal

With over 20 years of expertise in family law, Nisha specialises on all aspects of relationship breakdown and is trusted by clients for her discreet, tailored advice.

Family Director (filex)

Natalie Matthews Bunting

Natalie is a specialist in divorce and financial remedy, including high value cases involving multiple pensions, multiple properties and multiple businesses.

Senior Associate

Lauren Blythe

Lauren is a highly regarded specialist family law solicitor, based at our Guildford office. She advises on divorce, family finances, children matters, domestic abuse, cohabitee issues, and relationship agreements.

Senior Solicitor

Susan Hayes

Susan qualified as a solicitor in 1992 and is based at our Brighton office. She is a longstanding member of the Law Society Specialist Children Panel and Family Law Panel. Susan is also a trained Collaborative Lawyer.

Associate

Rachael Au

Rachael is a highly capable member of the family team in Brighton. She specialises in family law, advising on divorce, civil partnerships, financial matters, and children issues.

Associate

Alice Barrett

Alice advises and supports clients on a range of family law matters including divorce, separation, financial remedy, private children matters and emergency applications.

Associate

Amelia Groom

Amelia has experience across a full range of family matters, including divorce, complex disputes regarding finances that range from trusts through to cryptocurrencies, and arrangements for children.

Associate

Natalie Higham

Natalie is a Family Legal Executive who advises individuals on divorce, separation, financial remedies available to them on the breakdown of their relationship, and children matters.

Associate

Katie O'Kelly

Katie advises on a wide range of family law matters including co-habitation, divorce and separation, financial remedies, and private children law matters.

Solicitor

Sophie John

An experienced solicitor, Sophie advises on matters relating to divorce, financial separation in both marriages and cohabiting relationships and children arrangements.

Solicitor

Alex Robinson

Alex supports the family team on a variety of matrimonial and Children Act matters that are often complex and with an international element.

Paralegal

Michelle Davies

Part of the Family Law team, Michelle supports on a variety of cases involving divorce, finances, children matters and day to day enquiries.

Paralegal

Isabelle Basson

Isabelle is responsible for following up day-to-day enquiries, administrative case management and generally supporting the Family team fee-earners.

Paralegal

Amelia Mahraj

Amelia is responsible, in her current role, for dealing with day-to day enquiries, administrative duties and supporting fee earners.

Paralegal

Aimee Atalay

Aimee provides dedicated support to the Family and Contentious Probate teams across a diverse range of matters. Aimee studied Law and Criminology at the University of Kent.

Paralegal

Izzy Minor

Izzy Minor is a Paralegal in the Family Team, supporting fee earners, and is a qualified Advanced CILEx Paralegal (MCILEx), holding a Diploma in Law and Practice.

Paralegal

Madison Bryant-Pollins

Madison provides dedicated support to the Family and Contentious Probate teams, including case management and the provision of clear, empathetic assistance to clients.

Secretary

Victoria Delatouche

Victoria is a highly experienced Legal Secretary and a long-standing member of the team. She provides secretarial support for the office.

Secretary

Michelle Louison

Michelle provides secretarial support to Henry Brookman. A very experienced family law secretary, Michelle has worked in law for over 12 years.

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