Some couples prefer to separate rather than go for an immediate divorce on the breakdown of their marriage. Although there is no legal requirement to enter into a Separation Agreement, it is highly advisable to do so. A Separation Agreement is evidence of what the parties agreed in relation to their finances and is a factor that the Court must take into account should one party seek to go back on what was agreed and make further claims against the other. A Separation Agreement is not, however, binding on the Court so care must be taken to ensure that it is as persuasive as possible.
The Court will have regard to the following factors when deciding whether or not to stand by a Separation Agreement:
- Whether either party put pressure on the other to enter into it
- Whether one party exploited their dominant position to secure an advantage
- Whether each party’s knowledge of the situation was adequate – the parties should each have made full and frank financial disclosure and usually an agreed financial summary is attached to the Separation Agreement
- Whether each party has taken independent legal advice or received bad legal advice
- Whether there has been a change of circumstances which was either overlooked or unforeseen
- Whether the terms of the Separation Agreement are fair
If you are looking to enter into a Separation Agreement, contact one of our Family Lawyers for further advice.