Separation Agreements

In the event that you are married or in a civil partnership but do not wish to divorce or dissolve the civil partnership immediately, it is possible to enter into a written agreement setting out what you intend to happen to your money and assets.  This is called a Separation Agreement.  In due course and in the event of divorce or dissolving a civil partnership the Separation Agreement can form the basis of a Financial Order made by the Court.

In England and Wales Separation Agreements are not watertight in the event of a later divorce.  However, a Separation Agreement is evidence of an agreement having been reached. To improve the prospect of the court confirming that the agreement reached is fair, both parties would need to set out their respective financial circumstances and take separate independent legal advice.  The Separation Agreement would also need to be showing to be fair in all the circumstances of the case.

A Separation Agreement is more likely to be upheld by the Courts and the following circumstances:-

• Where both parties have had independent legal advice
• Where there has been full financial disclosure
• Where the terms of the agreement recorded are fair
• Where neither party felt under pressure to enter into the Separation Agreement where there has been no fraud and misrepresentation

When one party no longer wishes to be bound by the Separation Agreement but the other party does an application can be made to the Court for the other party to explain why an order should not be made in the terms of the agreement. The Court will take into account all the circumstances of the case before making a decision.  You should not enter into a Separation Agreement unless you fully intend to be bound by its contents.

The advantage of a Separation Agreement is that it can give certainty as to what the financial arrangements are during any period of separation and in the event of divorce.

If you wish to discuss matters further please contact Jane Longworth