“I’ll still help with the bills” can be the reassurance that makes a separation agreement feel workable. It might be what allows both parties to move forward. But if that promise is not written into the agreement itself, it may not be enforceable.
In Scots family law, a separation agreement is commonly called a Minute of Agreement. It can deal with the family home, finances, children, and any other arrangements the couple needs to record. But separation agreements can have lasting consequences, particularly where someone is giving up rights to make financial claims in the future.
A recent Scottish court decision highlights what can happen when an important promise of financial support never makes it into the document.
What is a separation agreement in Scotland?
A separation agreement, or Minute of Agreement, is a legal document that records the arrangements made between a couple when they separate. It can be used whether or not the couple intends to divorce.
In Scotland, married couples and civil partners can use a Minute of Agreement to deal with their financial affairs, often as an alternative to going to court. An agreement might cover who will keep the family home, whether a property will be sold, how savings and pensions will be divided, and whether any financial support will be paid.
Some couples reach an agreement relatively quickly. Others spend time negotiating the terms, particularly where there are significant assets or disagreements about what a fair outcome looks like.
Once signed, a Minute of Agreement is generally legally binding. It may also be intended to settle financial claims permanently, which means one or both parties may be giving up rights they would otherwise have been able to pursue.
That makes it particularly important to understand what the agreement says, including any rights you may be giving up.
The promise that never made it into the Minute
In a Sheriff Court decision earlier this year, in the case of IL v DL [2026] SC DUM 38, a husband and wife agreed that the wife and children would remain in the family home. During the marriage, the family farming business had paid the household bills. After separation, the husband continued to do so for a period.
The husband assured his wife that he would continue to support her and the children financially. His solicitor advised her to seek independent legal advice if she was in doubt about her position. She signed without taking that advice.
The difficulty was that the separation agreement did not include that promise. Instead, it contained a clause giving up claims for aliment, which means financial support from one spouse to the other during the marriage or separation.
The sheriff found that the wife’s greater difficulty in meeting the costs of family life was foreseeable when the couple signed the agreement. The sheriff also found that the husband had taken advantage of his wife’s vulnerability in the immediate aftermath of separation.
The court varied the clause so that the wife could pursue claims for aliment and periodical allowance while the parties remained married and not divorced. Whether either claim would lead to an award was a separate question.
The case is a useful reminder that the terms of a separation agreement need to reflect the financial arrangements the parties have actually agreed, including any ongoing support.
What should be included in a separation agreement?
There is no single separation agreement that will suit every couple. The terms will depend on their circumstances, their assets, and what they have agreed between themselves.
For example, a couple might agree that one person will remain in the family home and take responsibility for the mortgage, while the other receives a lump sum or a share of another asset. They might also agree that one person will contribute to household costs or pay a regular sum towards the children’s expenses.
If those contributions are part of the settlement, the agreement should make clear what is to be paid, how often payments are to be made, and what happens if payments stop.
The same applies where one person agrees to pay a lump sum, transfer their interest in a property, or give up a claim against a pension. It is also important to consider what happens if circumstances change.
We regularly see situations where couples have discussed their arrangements between themselves and believe they have reached an agreement, but where the written document does not fully reflect what was discussed. That is why it is important to look carefully at the agreement as a whole, rather than simply checking that the main financial terms are there.
Can a signed separation agreement be undone?
A separation agreement in Scotland is generally legally binding, but there are circumstances in which its financial provisions can be varied or set aside by a court.
In divorce or civil partnership dissolution proceedings, section 16(1)(b) of the Family Law (Scotland) Act 1985 allows the court to vary or set aside the financial provisions of a separation agreement if it was not fair and reasonable at the time it was entered into.
As the Court of Session explained in Gillon v Gillon (No 3) 1995 SLT 678, the court considers the circumstances leading up to the agreement, the nature of the agreement, and whether it was fair and reasonable at the time of signing. The nature and quality of any legal advice can matter, as can evidence that one party took unfair advantage of the other.
An unequal division of assets or later difficulty living with the terms is insufficient on its own.
In IL v DL, the wife obtained a limited variation after the court heard evidence about the circumstances in which the agreement was signed. The outcome will always depend on the particular facts. Challenging an agreement can take time and involve significant legal costs, with no guarantee of success.
For that reason, it is far better to identify and address potential problems before signing.
Why independent legal advice matters before signing
We frequently hear from people who have been sent a draft Minute of Agreement and want to understand what it means for them. Often, the broad terms are already familiar — they may have agreed who will keep the family home, for example, without realising the full significance of the financial clauses in the document.
The significance of a clause often becomes clear only when it is read alongside the rest of the agreement. Sometimes, a person simply wants reassurance that what they have been asked to sign reflects the arrangements they have discussed. In other cases, reviewing the document identifies matters that have not been properly addressed, or financial claims that have not been considered.
Each spouse or civil partner should have a genuine opportunity to take independent legal advice before signing. That means advice from a solicitor acting for them alone, not the solicitor acting for the other party.
Where one person is relying on a promise of financial support, that promise needs to be part of the discussion. If it forms part of the agreed settlement, it should be recorded in the agreement itself. Those terms should be read alongside any clause giving up financial claims.
What if you have already signed a separation agreement?
If you have already signed a Minute of Agreement and are concerned about its terms, it is worth obtaining advice before assuming that nothing can be done.
For example, you might have discovered that a financial arrangement you discussed with your former partner was never included in the document. Depending on the circumstances, it may be possible to negotiate a further agreement, or consider whether there are grounds to challenge the existing one.
However, the fact that an agreement no longer suits your circumstances does not automatically mean that it can be changed. A solicitor can review the agreement and explain whether there is a realistic basis for taking matters further.
Separation agreement solicitors in Scotland
Separation agreements can give both parties certainty about their financial arrangements and help avoid further disputes. Getting the terms right at the outset matters.
At Kee Solicitors, we regularly draft, negotiate and review Minutes of Agreement for clients across Scotland. Whether you are considering a separation agreement, have been sent a draft by your former partner’s solicitor, or have concerns about an agreement you have already signed, we can help.
If you have questions about a proposed agreement or would like advice on one you have received, please get in touch with our family law team.
This article provides general information about Scots family law. You should take legal advice on your own circumstances before making any decisions.
