Separation agreements

There is some debate as to whether a separation agreement is directly enforceable. It is perhaps better to ask whether it will be upheld by the Court if one or other party then tries to get out of it. So long as there has been full and honest financial disclosure, so long as both parties have been independently legally advised and so long as there has been no significant change of circumstances the matrimonial courts will usually uphold a separation agreement.

If a couple are divorcing or know that they will be divorcing very shortly, once agreement has been reached with regards to the financial issues it is generally best to go straight to obtaining the Court's approval of that agreement by way of a consent order.

If, however, a couple do not want to get divorced until they can use the grounds of two years separation (coupled with the other's consent) but yet they want to divide up their assets and begin their respective new lives, a separation agreement can be a useful and effective way of achieving that. It would still be a good idea, however, to turn the separation agreement into a consent order once divorce proceedings are eventually started two years down the line.

If, for example, a couple do not want to get divorced for religious reasons or because they perceive it as beneficial to preserve rights to a widow or widower's pension or simply for other personal reasons a separation agreement would be sensible. It would also be a good idea to give serious thought to the process of judicial separation which effectively enables a separation agreement to be approved by the Court in a very formal way but without there being a divorce. Instead a decree of judicial separation will be pronounced. Proceedings for judicial separation are not common but can be extremely useful in these sorts of circumstances. This should be discussed with your legal adviser.