SEPARATION AGREEMENTS

This is an alternative to divorce. The parties can enter into a separation agreement which provides for maintenance, care for children and division of the property. They can be described as separation agreements or maintenance agreements.

If the parties agree in the separation agreement to part immediately then it would be enforceable and is not void on the grounds of public policy. This will be evidence that the marriage has broken down and is not referring to some matter in the future, which can be described as a similar term such as premarital or pre-nuptial agreement.

If the parties have already separated then either type of agreement can be entered into. It is essential that both parties have independent legal advice so that at any time in the future neither party can claim that they entered the agreement on the grounds of fraud, mistake, duress or undue influence.

The typical areas that are covered by separation agreements are as follows.

• A separation agreement in writing can form the basis of the evidence required for a divorce on the grounds of either two years’ or five years’ separation, which are two of the other grounds that can be used for a divorce petition.
• The agreement could contain provision for the maintenance of the parties or any children. This does not prevent the Child Support Agency overturning that part of the agreement. Again it does not prevent either party at some future date making an application to the court for maintenance.
• A property agreement could cover such matters as the mortgage, outgoings and repairs.
• Both parties share parental responsibility and there is no particular need to make arrangements for the children. Unmarried fathers do not automatically have parental responsibility.

The advantages of separation agreements are that they will avoid court proceedings. If they are not complied with by the parties then resource would have to be made to the courts and the usual methods of enforcement of a contract would apply.

Separation agreements are never the final solution, but like a premarital agreement can be regarded as persuasive. Any provision in the agreement, ousting or restricting the right of the court is void.