By Alex Tomley
A separation agreement can be used where parties do not currently wish to enter into divorce proceeding, whether this is for religious, cultural or personal reasons, but they want to enter into an agreement which sets out how their finances are divided in the event of subsequent divorce or dissolution. A separation agreement does not end a marriage and is suitable usually where the parties have already separated or are going to separate in the near future but they do not want to enter into divorce proceedings immediately.
Are Separation Agreements binding?
Separation agreements are reached through a private discussion between individuals. If parties later decide to issue divorce proceedings, the separation agreement could be unravelled. Therefore the only way of ensuring that one party cannot attempt to unravel an agreement of the distribution of finances is to obtain a court order/consent order (assuming that the court accepts the terms in the consent order if agreed between the parties). However, whilst a court is not bond by a separation agreement, the terms are usually upheld if these terms have been carefully negotiated between the parties, usually with the benefit of independent legal advice, and concluded immediately before separation.
Can you enforce the terms of a separation agreement?
When there is a dispute regarding the enforceability of a separation agreement, the parties’ conduct during the negotiations will be considered and the court will look at evidence of the parties’ understanding of the implications of the agreement. It is therefore important to include clauses that make it clear that the parties have received independent legal advice about the terms of the agreement and full and frank financial disclosure of the parties’ financial resources.