Separation agreements, consent orders and the agreements the court takes into account

Separation agreements

A separation agreement records what a married couple have agreed about their finances when they part, usually before a divorce has been started or finished. It is a contract and the court attaches considerable weight to one made with advice, with disclosure and without pressure: in Edgar v Edgar [1980] 1 WLR 1410 the Court of Appeal held that a party who has made such an agreement should be held to it unless there are good and substantial grounds for concluding that an injustice would be done. But it does not oust the court. Section 34 of the Matrimonial Causes Act 1973 says that any term purporting to stop either party applying to the court is void and the court can still make a different order if the agreement is unfair or circumstances have changed.

The way to make the agreement stick is to turn it into a consent order once the conditional order of divorce has been made. The court approves the order on paper, the terms become enforceable as a court order and a clean break, if agreed, finally ends the claims. A separation agreement that is never made into an order remains a contract that is open to challenge and does not end either party's claims, including claims on death.

An existing pre-nuptial or post-nuptial agreement

Not binding, but usually decisive

In England and Wales a couple cannot contract out of the court's power to make financial orders on divorce. Whatever the agreement says, the court decides under section 25 of the Matrimonial Causes Act 1973 (or the equivalent for civil partnerships) and the agreement is one of the circumstances it must weigh. That is why every agreement RemedyReady builds says so on its face: it is a statement of what you both intend the court to do, not a bar to the court doing anything else.

Since the Supreme Court's decision in Radmacher v Granatino [2010] UKSC 42, however, the weight is heavy. The court should give effect to a nuptial agreement that was 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 it. In practice a well-made agreement is followed on most points and the party who wants to escape it has to show why that would be unfair.

What gives an agreement weight

• Disclosure. Each of you knew, in broad terms, what the other had. Schedules of assets attached to the agreement are the simplest proof.
• Advice. Each of you had the chance to take independent legal advice and ideally took it. Advice is not a legal requirement, but an agreement signed without it is much easier to attack as not fully understood.
• No pressure. Signed without duress, undue influence or exploitation of a weaker position. Timing matters: the Law Commission recommended that a pre-nuptial agreement be signed at least 28 days before the wedding and the courts treat an agreement produced on the eve of the wedding with suspicion.
• Fairness when it is tested. The question is asked at the divorce, not the wedding. An agreement that was fair when made can become unfair if circumstances have changed in ways it did not provide for: children, illness, a long marriage, one party giving up a career.

What an agreement cannot do

It cannot leave either party in real need and it cannot prejudice the children: the court will meet needs and provide for children whatever the agreement says. It cannot fix child maintenance, which is the Child Maintenance Service's job. It will carry least weight over property built up during the marriage by joint effort and most over property one party brought in or inherited, which is the kind of property these agreements are usually made to protect.

Post-nuptial agreements

An agreement made after the wedding is judged by the same test. The courts had already recognised post-nuptial agreements before Radmacher (MacLeod v MacLeod [2008] UKPC 64) and one made calmly during the marriage, with disclosure and advice, is at least as strong as a pre-nup. Couples use them to update a pre-nup, to record an inheritance or a gift from family, or to settle a reconciliation.

The law may change

The Law Commission recommended in 2014 that "qualifying nuptial agreements" which meet set formalities should be binding, save for needs. That has not been enacted. Until it is, the position above applies and the formalities the Commission proposed (disclosure, advice, 28 days, a deed) are the best guide to what will be respected.

Cohabitants: couples who live together without marrying

There is no common law marriage

However long you have lived together and whether or not you have children, the law of England and Wales gives cohabitants no claims against each other on separation. There is no maintenance, no sharing of assets, no pension sharing and no right to stay in the other's home. The Matrimonial Causes Act applies only to married couples and civil partners. Reform has been recommended since the Law Commission's report of 2007 and the government has said it will consult on it, but no reform has been enacted at the date of writing.

What decides who gets what

• The home in joint names. The starting point is that you own it equally, whoever paid what, unless there is a declaration of trust saying otherwise or one of you proves you both intended different shares (Stack v Dowden [2007] UKHL 17; Jones v Kernott [2011] UKSC 53). The transfer deed, or a separate declaration of trust, usually settles it.
• The home in one name. The other partner gets nothing unless they can prove a trust: that you both intended them to have a share and they relied on it to their detriment, for instance by paying towards the purchase or the mortgage or paying for major works. Housework, childcare and paying the bills rarely count. These claims are made under the Trusts of Land and Appointment of Trustees Act 1996 in the civil courts, where the loser normally pays the winner's costs.
• Everything else. Bank accounts, savings, cars and possessions belong to whoever owns them in law. Joint accounts are generally shared equally.
• Children. Either parent can claim financial provision for a child under Schedule 1 to the Children Act 1989, which is open to married and unmarried parents alike: a home for the child until they finish education, lump sums, school fees and other educational costs and, where the paying parent's income is above the Child Maintenance Service ceiling, maintenance on top of the CMS figure. The provision is for the child; the home goes back to the paying parent when the child grows up.
• Death. A cohabitant inherits nothing on intestacy. A partner who lived with the deceased for two years can claim reasonable provision under the Inheritance (Provision for Family and Dependants) Act 1975, but only what they need for maintenance. Make wills.

Cohabitation agreements

A cohabitation agreement, made while the couple are together, records whose the home and other assets are and what happens if they part. It is made on our sister site, AgreeReady. A separating cohabiting couple with a child can still claim for the child under Schedule 1, which RemedyReady covers.