Many couples, who are facing difficulties in their marriages and wish to have a period of time apart, are not necessarily ready to instigate the finality of divorce proceedings. For those couples, a correctly legally drafted separation deed may be the ideal solution.
Married couples can decide between themselves to separate and are not under any legal obligation to inform any legal professional they are no longer together. Separation agreements are a much less formal approach than divorce and often provide effect ways of regulating the financial arrangements that need to be determined following a breakdown of a marriage.
Separation agreements can include some or all of the following types of matters:
- Division of property
- Decisions who will live in the former matrimonial home or other property
- Division of investment products and savings
- Decisions about family businesses/Partnerships and transfer of shareholdings
- Payment of maintenance to either spouse or children
- Other children’s provisions, including the payment of school or tertiary fees
- Who will bear responsibility for the payment of bills, debts etc
When considering whether or not to uphold an agreement in subsequent court proceedings for divorce, the court will before deciding on whether it is fair to up hold the agreement, ensure that there has been full and frank disclosure of all relevant and necessary financial information by both the husband and the wife and look to ensure both parties have the benefit of independent legal advice or at least have had an opportunity to take it. Consideration should also be given as to whether a party to the agreement’s circumstances may have changed. For example, by way of a property or business asset significantly increasing or reducing in value. The validity of such an agreement can relate to questions such as whether one party has been at a disadvantage or been under the influence or dominance of the other party. In those circumstances the court may decide not to uphold an agreement.
It is therefore wise to ensure any document is correctly drafted to ensure it is legally binding and will be accepted by the court should proceedings for divorce occur at a later stage.
Separation Agreements which have all of the relevant factors above are very likely to be upheld by the court, at which point the private agreement will then become a consent order within the context of the divorce proceedings.