A Separation Agreement is a legal agreement made between individuals (who may be married or unmarried but who have been living together) who are contemplating imminent separation, or who have already separated.
These Agreements record the terms agreed by the parties with a view to recording the financial terms agreed.
When may a Separation Agreement be appropriate?
Some couples may wish to enter into a Separation Agreement to regulate their financial arrangements as a first step toward divorce proceedings. This may be because the parties have been married for less than a year (and so consequently are unable to divorce) or they intend to divorce based on two years separation with consent. Sometimes, Separation Agreements are entered into for other reasons including where couples have no immediate plans to divorce or have no wish to do so.
It is important to appreciate that only agreed terms can be recorded within a Separation Agreement. If the parties cannot reach an agreement then they may be faced with having to wait until a divorce to enable a divorce Court to determine a fair division of their assets.
A Separation Agreement in itself cannot exclude the Court’s jurisdiction in Financial Remedy Proceedings on divorce. Separation Agreements are, however, very persuasive documents and the Court is likely to uphold the terms recorded within a Separation Agreement where that agreement has been properly and carefully negotiated, the parties have had separate legal advice, and all material terms and financial information has been disclosed to the other. However, there are occasions when the Court will not uphold the terms of a Separation Agreement at the time of divorce and this is typically because something has occurred in the interim that has rendered its terms unfair at the time of divorce.