Separation Agreement

There are times when a couple may not want to divorce but may still want to separate even though they remain married.  Sometimes couples prefer to divorce after a period of two years separation, rather than commence divorce proceedings now on the basis of their spouse’s unreasonable behaviour.    For such a couple, it can be just as important to regulate the financial issues flowing from their relationship.  In such a case, the couple may wish to enter into a Separation Agreement.

This requires both parties co-operation.  One party cannot force the other to enter into the agreement.  Each party needs to take their own independent legal advice.  There also needs to be a mutual exchange of financial disclosure before the Solicitors can advise as to what type of settlement would be fair taking into account the various factors such as the length of the marriage, the ages of the parties, the needs of dependent children, the parties’ respective incomes and earning capacities, pension provision, standard of living throughout the marriage, capital resources, and contributions.

Once the terms have been agreed, the Separation Agreement can be prepared.  It is then signed by both parties and it will include Appendices recording a summary of the financial disclosure which both parties have provided with regard to their income, capital and pension.

Drawbacks to a Separation Agreement

It is important to highlight some drawbacks to a Separation Agreement.  Even though a couple might agree to remain separated and then to divorce in say two years time, one party could withdraw their agreement to divorce at any time.  This means that at the end of the period of two years separation, the other party could not force their spouse to co-operate in divorce proceedings based on two years separation and consent.  In that event, the party wanting a divorce would either have to then bring the divorce proceedings on the basis of their spouse’s unreasonable behaviour or they would have to wait a further three years until the parties had been separated for five years (a divorce on the basis of five years does not require the other party to provide their consent).

Also, a Separation Agreement does not carry the same weight as a Court Order within divorce proceedings.  A Separation Agreement does not take into account a change in either party’s financial circumstances between the date of the Separation Agreement and the time that the document is incorporated into a Court Order within the later divorce proceedings. In the event that one party’s financial position were greatly to increase between the date of signing the Separation Agreement and the later divorce proceedings, e.g. as a result of receiving an inheritance or a Lottery win, the other party would have to try and re-negotiate the terms of the Separation Agreement and would have to try and persuade the Court that they should have a share of their spouse’s increased wealth.  In that event the court will take account of the fact that the extra wealth came to the other party after separation.

Ultimately, the Court is not obliged to grant an Order in the terms of the original Separation Agreement, as the District Judge has the discretion to ensure that the agreed terms are fair and reasonable to both parties.  That is why, in the event that there is a subsequent challenge to a Separation Agreement, it is essential that it can be shown that both parties had independent legal advice and that there was a mutual exchange of financial disclosure so that it is clear that both parties were making informed decisions.  It is also essential that one party does not exert undue pressure on the other.

If you would like to have the certainty of a Court Order recording a financial settlement, sooner rather than later, then you may wish to consider having a divorce now on the basis of your spouse’s unreasonable behaviour. It is true, however, that a divorce on the basis of two years separation does tend to be more amicable.