Separation Agreement Case Study

We represented a Husband who was going through a separation with his Wife and who had both come to an agreement as to resolving their Financial Settlement between them. The parties had only just issued Divorce Proceedings, so it would be around over 4 months until they could file a Consent Order with the Court reflecting the financial agreement they had reached.

There was a concern that Wife may lose motivation to sign a Consent Order on the terms agreed. The Husband was keen to ensure that there was some formality to the agreement reached pending being in a position to request a Financial Order be made. We therefore assisted the Husband in the preparation of a Separation Agreement.

Our Approach and advice

It was important to advise the Husband that the Court’s jurisdiction cannot be ousted by agreement under the Matrimonial Causes Act. Therefore, there is a risk that either party could seek to renege/ unravel the agreement. However, the terms would usually be upheld if:-

• It has been carefully negotiated, both parties have a full understanding of the implications of entering into the Agreement and it was freely entered into

• There has been full and frank financial disclosure or at the very least they are each respectively aware of the other’s resources

• Both parties have the benefit of legal advice

• The agreement reached is deemed fair

There would need to be substantial grounds to say that it would be unjust to hold parties to the agreement reached, if the above is satisfied.

The main issues between the parties were that Husband had investments and ownership of two properties which were agreed to be non-marital. The assets were owned before the parties’ married, had not intermingled with marital funds, and respective needs could be met with distribution of marital assets only.

The Separation Agreement reflected the terms of the agreement between the parties and clearly recorded the assets which were viewed to be non-marital. The basis of which was to avoid dispute further down the line and a potential claim by the Wife against the Husband’s separate property.

Outcome

The Separation Agreement was signed by both parties. We were then able to transfer the terms of the agreement into a Consent Order, and this was filed once the Conditional Order had been granted. The Consent Order was approved by the Courts, and therefore legally binding. The Husband was happy with the agreement reached, his separate property was protected, and a clean break provision was included ensuring there could be no future claims from Wife.