What is a Separation Agreement?
A Separation Agreement, or Deed of Separation as it is otherwise known, is a document that records an agreement reached between separating couples regarding the division of their property and other assets. Where a couple are married the Deed of Separation can also record any agreement reached in respect of future divorce proceedings.
When can a Separation Agreement be used?
A Deed of Separation can record an agreement reached upon separation by a couple who are not married in respect of the division of their jointly owned property and assets. However, a Deed of Separation is more commonly used to record an agreement reached between a married couple who do not wish to divorce at the time the agreement is made. If a married couple are intending to divorce then it is better to have their financial agreement recorded in a Consent Order (see more below).
Is a Separation Agreement binding?
Under matrimonial law the courts have very wide discretion in respect of the orders they can make upon application by either party in Financial Remedy proceedings. It is not possible to oust the jurisdiction of the court and for this reason, although a Deed of Separation can be a formal legal document if it has been drafted correctly by a legal professional, it is not legally binding in its own right. Therefore, if either party to a Deed of Separation subsequently applies to the court in Financial Remedy proceedings, the court are not obliged to accept the terms of it and have discretion to make alternative orders thereby potentially overturning the terms of the Deed of Separation.
Will the courts attach any significance to the terms of a Deed of Separation?
The courts will attach some significance to the terms of a Deed of Separation that has been properly drafted so long as certain formalities are complied with. Both parties must make full financial disclosure of their property, other assets and income to the other prior to the agreement and both parties must have independent legal advice on the terms of the Deed of Separation before it is signed. Both parties must have entered into the Deed of Separation voluntarily without any pressure to do so from the other party. It is important that the terms of the Deed of Separation are fair.
When will a Separation Agreement not be binding?
It is unlikely that the courts would attach any weight to the terms of a Deed of Separation where full financial disclosure has not been made or where either party had been pressured into signing the Deed of Separation or has not had the benefit of independent legal advice. If the circumstances of either party have changed between the date of the Deed of Separation and a subsequent application for Financial Remedies then this could be a further reason why the courts would overturn the terms of the Deed of Separation.
Is it advisable to have a Deed of Separation?
If a married couple are not intending to divorce at the time they reach an agreement regarding division of their property and assets then it is certainly advisable to enter into a Deed of Separation to record that agreement. So long as both parties make full financial disclosure of their property, other assets and income and so long as they each receive independent legal advice on the terms of the Deed of Separation before they sign it then it is very likely that the courts will attach significant weight to the terms of the Deed of Separation even if one party attempts to overturn the terms of it by making an application to the courts in the future.
What is a Consent Order?
A Consent Order is a document setting out the terms of an agreement reached between a married couple in respect of the division of their property and other assets. A Consent Order is a legal document which should be drafted by a suitably qualified legal professional.
Is a Consent Order binding?
Once the Consent Order has been approved and signed by the parties an application is made to the courts for its approval and once the Consent Order has been approved by the courts it is legally binding. The terms of it cannot then be overturned. Both parties will need to make full financial disclosure of their property, other assets and income on Form D81 – Statement of Information for a Consent Order in Relation to a Financial Remedy form before the courts will approve a Consent Order. Both parties should have independent legal advice on the terms of the Consent Order before they sign it. The Consent Order will be reviewed by a Judge before it is approved to ensure that the terms of it are fair. If the terms of the Consent Order are not fair then it is unlikely that it will be approved by the courts.
When can a Consent Order be used?
An application for approval of a consent order can only be made to the courts once divorce proceedings have reached the Decree Nisi stage. Therefore, it is only possible to record an agreement by way of a Consent Order if the parties are intending to divorce. If the parties are not intending to divorce at the time the financial agreement is reached then a Deed of Separation is the only document that can be used to record their agreement.
Can a Consent Order be used if there is already a Deed of Separation?
If a married couple decide to divorce after entering into a Deed of Separation, it is possible to then enter into a Consent Order and, indeed this is advisable. As mentioned above a Consent Order that has been approved by the courts becomes legally binding on both parties whereas a Deed of Separation is not legally binding and may subsequently be overturned. A Consent Order, once approved by the courts, will dismiss the future claims of both parties. Both parties can then live their lives in the knowledge that their former spouse cannot make further claims against them in the future.