A Separation Agreement is a document which records the arrangements that a couple, married or unmarried, intend to enter as a result of their separation.
An agreement of this type can cover a whole range of issues but primarily they are concerned with the financial arrangements which have been agreed between a couple as a result of their relationship breakdown.
Separation agreements are essentially a kind of contract and as such the circumstances surrounding their creation are very important. Although the agreement is not binding upon the Court it will certainly attach to it considerable weight if the following can be demonstrated;
- The agreement contains a statement that the couple intended it to be a legally binding document;
- That both parties provided full and frank disclosure of their finances and that the disclosure documents are attached to or recorded within the document;
- That both parties received independent legal advice about the meaning of and consequences of the agreement reached;
- That the parties did not enter the agreement as result of any undue influence or pressure (obtaining independent legal advice can help demonstrate that this is the case)
Why use a separation agreement?
Where the couple concerned are married a separation agreement releases them from their duty to live with each other. This prevents either party from alleging that the other has deserted the marriage. Desertion is one of the five facts that can be relied upon when one party to the marriage wishes to pursue a divorce.
A separation agreement also allows a married couple to deal with the financial arrangements first without pursuing a divorce if they do not wish to do so. The agreement usually builds in a pathway to divorce based on either a 2 year separation with consent or a 5 year separation. Both are available facts which may be relied upon when a party wishes to demonstrate that the marriage has irretrievably broken down – irretrievable breakdown being the one and only ground for divorce.
Are there any drawbacks to using a separation agreement?
Married couples have certain claims for financial remedies which arise from the fact that they are married. These claims mean that they have the right to ask the Court to make a decision about their finances which includes property, savings, investments, policies, income and pensions. These claims will continue to exist until they are dismissed by a Court. These claims even exist once the couple have divorced – i.e the Court have pronounced decree absolute and the marriage has been dissolved. A separation agreement cannot get rid of those marriage claims. They can only be dismissed by an order of the Court and such the agreement cannot offer the same finality as an order.
A separation agreement cannot deal with pension rights. Therefore if a party wants to seek a pension sharing order or pension attachment order this can only be dealt with by an order of the Court.
Separation agreements tend to be documents which cover a transitional period with the intention that their terms are to be included within a consent order when the parties divorce, so that any claims which arise from the marriage can be dismissed once and for all.