Separation agreements

It has long been established that where a couple has separated or is about to separate every encouragement should be given to them to reach agreement with regard to their financial affairs.

Separation agreements can cover certain specific issues only (for example maintenance) or they can be comprehensive and provide for full division/distribution of the available assets, as would occur on a divorce.

A separation agreement cannot actually purport to oust the jurisdiction of the Court. In other words, when an agreement has been reached, it is still technically possible for one or other party to make an application to the Court for a different level of financial provision. If, however, each party has been separately legally advised and if there has clearly been full and honest disclosure of each party's financial circumstances (usually evidenced by a schedule attached to the agreement) and so long as there has been no significant change in circumstances which it would be inequitable and/or unrealistic to disregard, it is possible to be confident that the agreement will be upheld. As a matter of public policy people need to be able to move on with their lives from a reasonably certain base.

Where a couple have decided that they are going to be starting divorce proceedings there is generally little point in drawing up a specific separation agreement. If the couple are able to reach agreement whether through direct discussions, with the assistance of solicitors or through mediation; the usual approach would be to draw up that agreement and then, within the divorce proceedings, seek the Court's approval which the Court will signify by making the order by consent.

The agreement reached by the couple will then have the same force as any other court order and can be enforced in precisely the same way. If the consent order provides for a clean break then both parties will be able to rely on that in the absence, of course, of a fraud or misrepresentation in the negotiations leading to the drawing up of the order.

Although separation agreements are not confined to this instance a common use tends to be in a situation where a couple know that they want to separate and know that they wish to divide up their assets but for whatever reason simply do not want to get divorced. Perhaps an even more common use is the situation where although the couple know that they want to get divorced, they are reluctant to use or simply do not have available to them one of the grounds for divorce which do not depend upon periods of separation (adultery or unreasonable behaviour). The couple may therefore be planning on getting divorced once they have been separated for two years. In the meantime, however, they want to divide up their assets and move on with their lives.

In those circumstances a separation agreement is an extremely useful tool. The agreement will usually provide for steps to be taken once divorce proceedings are initiated a couple of years down the line to redraft the agreement as a consent order and obtain the Court's approval to it within the divorce proceedings.