A separation agreement, often called a deed of separation, is a written agreement in which a couple who have decided to live apart record what they have agreed about their money, property, debts and, where relevant, the arrangements for their children. In England and Wales it is a private document: no court approves it when it is signed, and it takes effect as a contract between the two people who make it.[1][2] For married couples and civil partners the Matrimonial Causes Act 1973 recognises it as a “maintenance agreement”, with the consequence that any term purporting to prevent either party applying to the court for financial provision is void, while the remaining financial terms stay effective.[3]
Because the court’s power to make financial orders on divorce cannot be excluded by agreement, a separation agreement is not the final word.[2][3] A separation agreement’s practical strength comes from the approach the courts take to it: since Edgar v Edgar (1980), restated by the Supreme Court in Radmacher v Granatino [2010] UKSC 42, an agreement freely entered into by each party with a full appreciation of its implications will be given effect unless in the circumstances prevailing it would not be fair to hold the parties to it.[2] Separation agreements are used by couples who cannot yet divorce (an application cannot be made in the first year of marriage), who do not wish to divorce, or who want a record of their arrangements while a divorce proceeds; on divorce the agreement is usually converted into a consent order, which is binding in a way the agreement alone is not.[4][5][6]
Definition and purpose
The Matrimonial Causes Act 1973 does not use the phrase “separation agreement” as a term of art. Section 34(2) instead defines a “maintenance agreement” as any written agreement between the parties to a marriage which either contains “financial arrangements”, whether made during the marriage or after it has been dissolved or annulled, or is “a separation agreement which contains no financial arrangements” where no other written agreement between them does.[3] “Financial arrangements” means provisions governing the parties’ rights and liabilities towards one another when living separately in respect of payments, the disposition or use of property, and the maintenance or education of any child.[3] The Civil Partnership Act 2004 applies the same scheme to civil partners.
In ordinary usage a separation agreement is the document a separating couple sign to record their settlement. It is distinct from judicial separation, which is a court order obtained by application and carries a fee of £426, and from divorce itself.[7] It is also distinct from a consent order, which is an order of the court, and from a mediation memorandum of understanding, which is expressly not intended to be binding. Those differences are set out below.
The purposes of a separation agreement are practical. It settles who pays what while the couple live apart, records how capital and debts have been or will be divided, fixes interim arrangements for the family home, and gives each person a document to rely on if the other departs from what was agreed. GOV.UK advises separating couples that they can usually avoid court hearings if they agree about children, money and property, and that where they later divorce they can apply for a consent order to make an agreement legally binding.[1][5]
What a separation agreement covers
A separation agreement typically records: the date of separation; who will live in the family home and who pays the mortgage or rent, council tax and bills in the meantime; how the home will ultimately be dealt with (sale, transfer or a deferred sale); the division of savings, investments, vehicles and contents; responsibility for joint and sole debts; any maintenance one party will pay the other and for how long; child maintenance and arrangements for the children; how pensions will be treated on any later divorce; the making of new wills; and an undertaking by both parties to convert the terms into a consent order if they divorce or dissolve their civil partnership.[1][8]
| Subject | What is usually recorded | Notes |
|---|---|---|
| The family home | Who occupies it, who pays the mortgage, and whether it will be sold, transferred or retained until a trigger event | See the family home on separation and mortgage and tenancy on separation. A transfer between spouses under a formal separation agreement is treated as made at no gain and no loss for capital gains tax without time limit[9] |
| Capital and contents | Division of savings, investments, vehicles and household contents; any lump sum | Recitals often list the assets disclosed by each party |
| Debts | Who is responsible for each joint and sole debt, and indemnities between the parties | An agreement binds the parties, not the creditor; joint borrowers remain jointly and severally liable to the lender. See joint accounts and debts |
| Spousal maintenance | Amount, frequency, review dates and term of any payments between spouses or civil partners | Any clause preventing a later application to court is void under s.34(1); the court may vary the agreement under s.35[3][10] |
| Children | Child maintenance, where the children live and when they see each parent | A maintenance agreement cannot prevent either parent applying to the Child Maintenance Service; a clause purporting to do so is void[11]. See children after separation and parenting plan |
| Pensions | Statement of intention, for example that each keeps their own pension or that a pension sharing order will be sought on divorce | A pension can be shared only by court order on divorce or dissolution, not by agreement alone. See pensions on separation |
| Divorce | Agreement to apply for a consent order in the agreed terms, and who pays the costs | The court will still consider whether the terms are fair under s.25 before making the order[12][6] |
Agreements are drafted with recitals recording that each party has received independent legal advice, or has been advised to take it and declined, that each has given financial disclosure to the other, and that both intend the agreement to be binding and to be shown to the court on any later divorce. These recitals matter because they go directly to the factors the court weighs when deciding how much effect to give the agreement.[2]
Legal status and the weight given by the court
A separation agreement is a contract and is enforceable as one, but it cannot remove the Family Court’s power to make financial orders on divorce or dissolution. Section 34(1) of the Matrimonial Causes Act 1973 provides that any provision in a maintenance agreement “purporting to restrict any right to apply to a court for an order containing financial arrangements” is void, although the other financial terms remain binding.[3] The Supreme Court in Radmacher v Granatino stated the principle shortly: “The parties cannot, by agreement, oust the jurisdiction of the court.”[2] The weight the court gives to the agreement on a later application is therefore the practical question, and the answer is that an agreement freely made with full understanding will normally be upheld.[2]
Edgar v Edgar and the Radmacher restatement
The modern approach to separation agreements derives from the Court of Appeal’s decision in Edgar v Edgar [1980] 1 WLR 1410, in which a wife who had signed a separation deed with legal advice, and against that advice, sought a larger award on divorce. Ormrod LJ held that formal agreements, properly and fairly arrived at with competent legal advice, should not be displaced unless there were good and substantial grounds for concluding that an injustice would be done by holding the parties to them. The Supreme Court in Radmacher quoted his description of the relevant circumstances: “Undue pressure by one side, exploitation of a dominant position to secure an unreasonable advantage, inadequate knowledge, possibly bad legal advice, an important change of circumstances” are all “relevant to the question of justice between the parties”.[2]
Radmacher concerned an ante-nuptial agreement, but the majority expressly considered separation agreements alongside it and treated the same principles as applying to agreements made before, during and at the end of a marriage. The court’s central proposition, at paragraph 75, is that “the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.[2] The judgment identified three groups of factors: whether there were circumstances at the time of the agreement, such as duress, fraud, misrepresentation or exploitation of a dominant position, that detract from the weight it should carry; whether each party had the information material to the decision and intended the agreement to be effective; and whether it would be fair to hold the parties to it in the circumstances at the time of the divorce, in particular where the agreement would leave one party in a predicament of real need while the other is comfortably provided for, or would fail to make adequate provision for children.[2]
On independent advice and disclosure, the court declined to make either a strict precondition. It held that the Court of Appeal had been right to ask whether there was any “material lack of disclosure, information or advice”, and that where a party is fully aware of the implications of an agreement and indifferent to detailed particulars of the other party’s assets, “there is no need to accord the agreement reduced weight”.[2] The court also noted that a separation agreement is in some respects easier to uphold than an ante-nuptial one, because it is made in contemplation of the actual circumstances of separation rather than a hypothetical future.[2]
Variation by the court under section 35
Independently of divorce proceedings, either party to a subsisting maintenance agreement may apply under section 35 of the 1973 Act for it to be altered. The court may vary or revoke the financial arrangements, or insert new ones, if satisfied that “by reason of a change in the circumstances in the light of which any financial arrangements contained in the agreement were made” the agreement should be altered, or that it does not contain proper financial arrangements for any child of the family.[10] The section is little used in practice, because a party seeking to depart from an agreement usually does so within a divorce application under section 25, but it confirms that the agreement is not immutable even while the marriage continues.
Children and child maintenance
Terms about children carry the least weight of all, because the court’s first consideration on any financial application is the welfare of any minor child of the family, and because child maintenance has its own statutory scheme.[12] Section 9 of the Child Support Act 1991 provides that nothing prevents parents making a maintenance agreement, but that the existence of one does not prevent either parent applying to the Child Maintenance Service for a calculation, and any provision “which purports to restrict the right of any person to apply for a maintenance calculation” is void.[11] Arrangements for where children live and how much time they spend with each parent can be recorded, and often are, but they are not enforceable as a contract; if they break down the route is mediation or an application under the Children Act 1989.
Formalities in practice
There is no statutory form for a separation agreement and no requirement that it be a deed, but agreements are almost always executed as deeds. A deed must make clear on its face that it is intended to be a deed, must be signed by each party in the presence of a witness who attests the signature, and must be delivered as a deed.[13] Executing the document as a deed removes any argument about whether consideration passed between the parties and signals the seriousness of their intention.
The practices that give an agreement weight are those identified in Edgar and Radmacher. First, each party should have the opportunity to take independent legal advice, and the agreement should record whether they did. Second, each should give the other disclosure of their income, capital, pensions and debts, usually summarised in a schedule to the agreement; an agreement made on materially incomplete disclosure is vulnerable. Third, neither party should be under pressure: an agreement signed in haste, or in the shadow of a threat, will be given less weight or none.[2] Fourth, the agreement should be fair when made and should not leave one party unable to meet their needs, since an agreement that does so will not be upheld in that respect however carefully it was executed.[2]
Agreements commonly include a review clause, a clause stating which party bears costs, an agreement to make new wills, and an agreement that the terms are in full and final settlement of all claims and will be embodied in a consent order on divorce. The last of these is a statement of intention: the court retains its discretion, and the parties cannot bind it in advance.[3][6]
Separation agreements, consent orders and memoranda of understanding
Three documents are easily confused. A separation agreement is a private contract, made without the court, which the court will normally uphold on a later divorce but is not obliged to. A consent order is an order of the Family Court made under section 33A of the Matrimonial Causes Act 1973 on the parties’ agreed terms, after the court has considered a statement of information about their finances; it is binding and enforceable as any court order, and it can be made only within divorce or dissolution proceedings once a conditional order has been granted.[6][5][14] A memorandum of understanding is the document a family mediator prepares recording proposals reached in mediation; it is written to be without prejudice and not legally binding, so that the proposals can be taken for legal advice and turned into a separation agreement or a consent order.[15]
| Feature | Separation agreement | Consent order | Memorandum of understanding |
|---|---|---|---|
| Who produces it | Solicitor or the parties, often after mediation | Drafted by solicitors or the parties; approved by a district judge | Family mediator |
| Court involvement | None at signing | Court scrutinises Form D81 and may raise questions[16][14] | None |
| When available | Any time, married or not | Only after the conditional order in divorce or dissolution[5] | At the end of mediation |
| Binding? | Contract; upheld on divorce unless unfair[2] | Yes; enforceable as a court order | No; expressly without prejudice |
| Can dismiss future claims? | No; the court’s jurisdiction cannot be ousted[3] | Yes; a clean break order dismisses future claims | No |
| Pension sharing | Cannot itself share a pension | Can include a pension sharing order | Records the proposal only |
| Court fee | None | £62 within existing proceedings (fee 5.1, EX50, July 2026)[17] | None |
| Unmarried couples | Yes, as an ordinary contract | Not available (no matrimonial jurisdiction) | Yes |
A consent order is explained on Divorce Law Wiki, and the mediation document on Family Mediation Wiki. Advicenow, the public legal education charity, puts the distinction plainly: an agreement about finances on divorce needs to be turned into “what lawyers call a ‘consent order’ to make the agreement legally binding”, because a consent order “turns an informal agreement into a court order”.[8]
Converting a separation agreement into a consent order
Most separation agreements between spouses and civil partners contain a promise to apply for a consent order in the same terms on divorce or dissolution. The application cannot be made until a conditional order has been granted, which under the no-fault procedure is at least twenty weeks after the divorce application; GOV.UK advises applying before the final order.[5] The parties file a draft order, one copy endorsed with the respondent’s signed agreement, together with a statement of information on Form D81 from each of them and a notice of application (Form A, ticked for consent), with a fee of £62 under fee 5.1 of the family fees order as shown in the July 2026 edition of HMCTS fee list EX50.[14][16][5][17] The parties need not attend unless the court directs.[14]
The court does not rubber-stamp the agreement. Section 33A allows it to make the order “on the basis only of the prescribed information furnished with the application” unless it “has reason to think that there are other circumstances into which it ought to inquire”, and the district judge considers whether the terms are fair against the section 25 factors.[6][12] The existence of a properly made separation agreement is itself a powerful circumstance in favour of approval, and where the agreement was made recently, with advice and disclosure, and circumstances have not changed, approval is usually a formality. Where several years have passed, or a child has been born, or one party’s finances have changed substantially, the court may want the D81 to explain why the old terms remain fair.[2]
The practical steps of preparing the draft order and the D81 are set out on consent order and Form D81. ConsentOrder.org.uk, an information site operated by Family Legal Ltd, the publisher of this wiki, describes the routes by which couples reach an agreement, including a mediation memorandum, before it is drafted into an order.[18]
Separation agreements for unmarried couples
The Matrimonial Causes Act 1973 does not apply to couples who were not married or in a civil partnership, so sections 34 and 35 are irrelevant to them and there is no jurisdiction under which a consent order could later be made. For an unmarried couple a separation agreement is therefore an ordinary contract, enforceable in the civil courts under the general law, and there is nothing to convert it into.[1] Because unmarried partners have no claim to maintenance from each other and no claim to a share of property they do not own, the agreement is often the only document that gives a departing partner a right to anything beyond what the law of trusts would provide; equally, an owner who agrees to pay a former partner a sum is bound by that promise.[19]
Advicenow’s guide for cohabiting couples who separate advises that whatever is agreed about the home, money and belongings should be written down, and that a solicitor can draw up the agreement.[19] The same rules about children apply as for married couples: child maintenance can be agreed but cannot be put beyond the reach of the Child Maintenance Service, and arrangements for children are not contractually enforceable.[11] Where a jointly owned home is being transferred to one partner, the agreement is usually accompanied by a transfer deed and, where the other partner is to retain a share, a declaration of trust. The position of unmarried couples generally is covered on separating when unmarried, and the law on Family Law Wiki.
Cost
There is no court fee for a separation agreement, because no court is involved. The cost is the professional fee for negotiating and drafting it, which depends on the complexity of the finances and on whether the terms have already been agreed. MoneyHelper, the government-backed guidance service, states that in England, Wales and Northern Ireland total solicitor costs for a negotiated financial settlement typically range from £2,000 to £3,000, and that drawing up a consent order after an uncontested settlement can start from £250 plus VAT; for Scotland, where the equivalent document is a minute of agreement, it gives £1,000 to £1,500 for drafting a separation agreement formalising terms already reached.[20] Where the couple use mediation to reach the terms, the Family Mediation Council’s guideline figure is £130 to £170 per person per hour for sessions and documentation, with most couples needing three or four sessions.[15][20]
Fixed-price packages combining mediation and solicitor drafting are also offered. Mediate UK, a trading name of Family Legal Ltd, the publisher of this wiki, lists a separation agreement package of up to four hours of mediation followed by a deed of separation drafted by a firm of solicitors at £1,099 per person plus VAT as at September 2026.[21] If the agreement is later converted into a consent order there will be a further drafting fee and the £62 court fee.[17] Legal aid is not available for drafting a separation agreement; means-tested legal aid for the mediation that leads to it may be, and is described on legal aid for family mediation.
History
| Date | Development |
|---|---|
| 1929 | In Hyman v Hyman [1929] AC 601 the House of Lords held that a wife could not by covenant in a separation deed bar herself from applying to the court for maintenance: the court’s jurisdiction could not be ousted. The rule was later put on a statutory footing and is now section 34 of the Matrimonial Causes Act 1973[2][3] |
| 1957 to 1973 | The Maintenance Agreements Act 1957 introduced the statutory scheme for maintenance agreements, including the power to alter them, consolidated in sections 34 to 36 of the 1973 Act[3][10] |
| 1980 | Edgar v Edgar [1980] 1 WLR 1410: the Court of Appeal held a wife to a separation deed made with legal advice, setting out the circumstances in which such an agreement should and should not be upheld[2] |
| 2008 | In MacLeod v MacLeod [2008] UKPC 64 the Privy Council, on appeal from the Isle of Man, applied the Edgar approach to a post-nuptial agreement, treating it as a maintenance agreement subject to variation, as recounted in Radmacher[2] |
| 20 October 2010 | Radmacher v Granatino [2010] UKSC 42: the Supreme Court held that agreements freely entered into with a full appreciation of their implications should be given effect unless it would not be fair to do so, applying the same principles to ante-nuptial, post-nuptial and separation agreements[2] |
| 27 February 2014 | The Law Commission recommended legislation for “qualifying nuptial agreements” that would be binding if made as a deed, with disclosure and legal advice, at least 28 days before the wedding, and subject to the parties’ needs; the government did not legislate[22] |
| 6 April 2023 | Capital gains tax rules changed so that transfers between separating spouses under a formal separation agreement or court order are made at no gain and no loss without time limit[9] |
| 5 June to 14 August 2026 | The Ministry of Justice consulted, in “A fairer end to relationships”, on introducing qualifying nuptial agreements and a statutory scheme for cohabitants; the consultation did not address separation agreements as such. No response had been published by 6 September 2026[23][24] |
Criticism and debate
The recurring criticism of separation agreements is uncertainty. Because the court cannot be bound, a party who signs an agreement cannot know for certain that it will be upheld, and a party who regrets it cannot know for certain that it will not. The Law Commission’s 2014 report on matrimonial property, needs and agreements sought to address this for nuptial agreements by recommending a statutory category of “qualifying nuptial agreements” that would be contractually binding, provided that they were made as a deed with disclosure and independent advice and did not leave either party or any child without provision for their needs.[22] The recommendation was not implemented, but it reappeared in the Ministry of Justice’s 2026 consultation, which proposed “introducing qualifying nuptial agreements, enabling couples to decide in advance how finances should be arranged in the event of divorce while ensuring important safeguards”.[23]
A second line of debate concerns the balance between autonomy and protection. Supporters of the Radmacher approach argue that adults who have taken advice should be held to their bargains, and that the needs safeguard is sufficient protection. Critics, including the dissenting judgment of Baroness Hale in Radmacher, point out that the party who most wants an agreement is usually the financially stronger one, that pressure at the point of separation is real, and that the discretionary system exists to correct the imbalance.[2] A third, more practical, criticism is that many couples sign agreements drafted without advice or disclosure, sometimes from templates, in the belief that they have achieved finality, and discover on divorce that the agreement carries little weight; this is one reason why solicitors and mediators consistently advise converting a separation agreement into a consent order at the earliest opportunity.[8]
Getting a separation agreement drafted
Separation agreements are drafted by family solicitors, who can be found through the Law Society’s public search and through Resolution, the association of family justice professionals whose members commit to a non-confrontational code of practice.[25][26] Many couples reach the terms in mediation first and then take the memorandum of understanding to a solicitor to be drafted into a deed; some mediation services offer the two stages as a single package. Whoever drafts the document, each party should consider taking their own independent advice before signing, since that is one of the factors that gives the agreement weight.[2]
See also
- Separation – the overview
- Separation checklist
- Separating when unmarried – agreements for cohabitants
- The family home on separation
- Joint accounts and debts
- Judicial separation – the court-ordered alternative
- Divorce after separation
- Consent order – the binding court order on divorce
- Form D81
- Nuptial agreements – pre- and post-nuptial agreements and Radmacher
- Memorandum of understanding – the mediation document
References
- Money and property when a relationship ends. GOV.UK. updated 11 February 2025. Accessed 5 September 2026.
- Radmacher (formerly Granatino) v Granatino [2010] UKSC 42. Find Case Law, The National Archives. 20 October 2010. Accessed 5 September 2026.
- Matrimonial Causes Act 1973, section 34: Validity of maintenance agreements. legislation.gov.uk. Accessed 5 September 2026.
- Matrimonial Causes Act 1973, section 3: Bar on applications for divorce within one year of marriage. legislation.gov.uk. Accessed 5 September 2026.
- Money and property when a relationship ends: apply for a consent order. GOV.UK. Accessed 5 September 2026.
- Matrimonial Causes Act 1973, section 33A: Consent orders for financial provision or property adjustment. legislation.gov.uk. Accessed 5 September 2026.
- Get a legal separation. GOV.UK. Accessed 5 September 2026.
- Sorting out your finances when you get divorced. Advicenow (Law for Life). Accessed 5 September 2026.
- Capital Gains Tax: separation and divorce (policy paper). HM Revenue and Customs. 15 March 2023. Accessed 5 September 2026.
- Matrimonial Causes Act 1973, section 35: Alteration of agreements by court during lives of parties. legislation.gov.uk. Accessed 5 September 2026.
- Child Support Act 1991, section 9: Agreements about maintenance. legislation.gov.uk. Accessed 5 September 2026.
- Matrimonial Causes Act 1973, section 25: Matters to which court is to have regard in deciding how to exercise its powers. legislation.gov.uk. Accessed 5 September 2026.
- Law of Property (Miscellaneous Provisions) Act 1989, section 1: Deeds and their execution. legislation.gov.uk. Accessed 5 September 2026.
- Family Procedure Rules 2010, rule 9.26: Applications for consent orders for a financial remedy. legislation.gov.uk. Accessed 5 September 2026.
- Family mediation: cost. Family Mediation Council. Accessed 5 September 2026.
- Provide information about the parties’ financial situation to support your application for a consent order: Form D81. HM Courts and Tribunals Service. updated 16 July 2026. Accessed 5 September 2026.
- Family court fees (EX50). HM Courts and Tribunals Service. updated 13 July 2026. Accessed 5 September 2026.
- How to agree a consent order. ConsentOrder.org.uk (Family Legal Ltd). Accessed 5 September 2026.
- Living together and breaking up. Advicenow (Law for Life). Accessed 5 September 2026.
- How much does divorce or dissolution cost?. MoneyHelper. Accessed 5 September 2026.
- Separation agreement. Mediate UK (Family Legal Ltd). Price shown as £1,099 per person plus VAT. Accessed 5 September 2026.
- Matrimonial property, needs and agreements (project page and 2014 report). Law Commission. Accessed 5 September 2026.
- A fairer end to relationships: consultation document. Ministry of Justice. 5 June 2026. Accessed 5 September 2026.
- A fairer end to relationships (consultation page). Ministry of Justice. consultation ran 5 June to 14 August 2026. Accessed 5 September 2026.
- Find a solicitor. The Law Society. Accessed 5 September 2026.
- Find a law professional. Resolution. Accessed 5 September 2026.
External links
- Matrimonial Causes Act 1973, sections 34 to 36 – maintenance agreements
- Radmacher v Granatino [2010] UKSC 42 – full judgment
- GOV.UK: money and property when a relationship ends
- Advicenow: sorting out your finances when you get divorced
- Law Commission: matrimonial property, needs and agreements – 2014 report
- Ministry of Justice: A fairer end to relationships – 2026 consultation
This article is part of Separation Wiki, published by Family Legal Ltd. It is general information about the law of England and Wales, not legal advice. Last reviewed 6 September 2026. About this site and editorial policy · Report an error.