Separation agreements as an alternative to divorce or dissolution in Scotland

If you are thinking about getting divorced or dissolving your civil partnership in Scotland, but haven’t yet filed the papers, you can get a separation agreement drawn up. This sets out who will pay the rent or mortgage and bills, until you decide whether to proceed with your divorce or dissolution.

What is a separation agreement?

A formal separation agreement or ‘minute of agreement’ is a legally-binding document that sets out what a separating couple has agreed. Provided it is registered, it carries the same legal weight as a court order (which is where the courts say how a couple should divide their property and assets) and can be enforced in the same way.

This means it can be used by couples who separate but who don’t want to divorce or dissolve their civil partnership. It can cover a range of areas, for example:

  • who pays the mortgage or rent, and household bills
  • who continues to live in the family home and/or what happens if it’s sold
  • what happens to any debts, such as loans or overdrafts
  • what happens to savings, investments and other financial assets
  • what happens to any items such as cars or furniture, especially bought jointly
  • whether payments are made to support one of you and/or any children; and
  • childcare arrangements: who any children live with and parental access

Financial disclosure: being open about your money

If you don’t want your ‘minute of agreement’ to be challenged – because it’s not fair or reasonable – you and your ex-partner (husband, wife or civil partner) must be completely open and honest about your finances.

That way each of you will know what the other has by way of savings, investments, property and debts, and you can agree what you’re responsible for paying.

You do not have to take legal advice when you put together a separation agreement, but it’s a good idea to do this.

That’s because anything you decide to include in your ‘minute of agreement’ is legally binding. You won’t be able to change your mind after you’ve agreed to it.

It is especially important to take legal advice from a solicitor if your break-up is acrimonious, if one of you is much wealthier than the other or if your ex-partner is bullying or intimidating and puts you under pressure to sign the agreement.

If you both have already agreed what you would like to include in your separation agreement, you should each ask your own solicitor to check it and draw it up as a legal document.

When can I use a separation agreement?

You can use a ‘minute of agreement’ if you and your ex-partner are considering getting divorced or dissolving your civil partnership and:

  • you want to sort out your finances between you without asking the court to do so
  • you’ve decided that you want to split up and you want to sort out your joint finances and/or childcare arrangements, but wish to wait before divorcing or dissolving your civil partnership
  • you’re not able to divorce or dissolve your civil partnership, perhaps for religious reasons, but want to agree who pays what

Is a separation agreement legally enforceable?

Separation agreements are legally binding in Scotland and it can be enforced in the same way as a court order if the agreement is registered. This means you must think very carefully about what you are agreeing to.

It’s important that you and your ex-partner reach a fair agreement about who pays the mortgage or rent and bills, and how you deal with your other financial assets or debts. But you should not agree to anything you cannot keep to.

In very rare cases, ‘judicial separation’ or a ‘legal separation’ is used by people who do not want to divorce or dissolve their civil partnership, or who cannot do so for religious reasons.

You would have to apply to the court for a ‘decree of separation’. However, very few people use this because separation agreements are legally binding in Scotland.

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