We receive many enquiries from couples that wish to enter into a separation agreement when they decide to stop living together as a couple. A separation agreement can set out arrangements on matters such as finances, children and property and can be used as a first step towards dissolution or divorce proceedings.
Couples may wish to enter into a separation agreement because:
- They wish to separate but do not wish to divorce for religious, cultural or personal reasons. Some of these couples may wish to consider judicial separation (although this is not discussed here).
- The parties have been married for less than one year and so cannot yet issue divorce proceedings.
- The parties do not wish to blame each other for the divorce and want to wait the requisite period of time so that the divorce can proceed on the fact of two years’ separation with consent, or five years’ separation.
- The parties may wish to retain benefits that are lost on divorce, such as life insurance policies and pensions. Staying married also means couples can take advantage of certain income tax benefits.
Separation agreements certainly can be useful and are helpful documents for recording agreements made between separating couples. However, it is important to take legal advice as the legality of separation agreements is complex.
A separation agreement cannot exclude the court’s jurisdiction in financial remedy proceedings on divorce or dissolution, meaning, either party can apply to the court for financial orders and request that the court ignore or change some, or all, of the separation agreement. The only way to confidently prevent a party from trying to unravel a separation agreement is to convert the agreement into a formal court order, known as a consent order.
That being said, a separation agreement can give rise to an enforceable contract so it can still be challenged in court in the same way as any other contract.
It is important that certain conditions are met in order for the court to take a separation agreement seriously. A leading case in which a court was asked to decide whether a couple had to adhere to their agreement made it clear that, “the court should give effect to an agreement that is freely entered into by each party with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to the agreement”.
Therefore, if a separation agreement is entered into voluntarily and the following conditions are met, then it is unlikely a court would interfere to change it.
- Both parties took legal advice before entering the agreement.
- Both parties’ circumstances are broadly similar to when the agreement was made.
- The agreement makes adequate provision for children.
- The agreement appears fair and reasonable.
- Both parties have made full and frank financial disclosure.
If you are separating and wish to enter into a separation agreement, always instruct solicitors, otherwise your separation agreement is very unlikely to be upheld if challenged and may not be worth the paper it is written on. At Neale Turk LLP our family law team has a wide range of experience in family law and relationship issues and can efficiently guide you through all areas of family difficulties, including separation issues. We are members of Resolution, an organisation of 6,500 family lawyers and other professionals in England and Wales, who subscribe to a Code of Practice which is geared towards encouraging a constructive and non-confrontational approach in all family matters. If you have any concerns or queries, please feel free to contact us for a free initial appointment.