It is quite common that a husband and wife will separate but neither will want to take divorce proceedings at that time. They will, however, want to sort out financial arrangements, and ensure that those arrangements are finalized (so far as possible – arrangements can only be completely finalized by a court order when a divorce takes place). In these circumstances, a written separation agreement (or deed) is usually drawn up. A typical example separation agreement can be found in Appendix 1. Note that such an agreement cannot deal with pension sharing (see Chapter 4), which requires a court order.
Note also that, as indicated above, separation agreements are not 100% final, as they do not prevent the court in any future divorce proceedings from ordering a different financial settlement, on the application of either party. However, courts do like parties to agree matters and therefore if the settlement set out in the separation agreement is broadly reasonable then the court is less likely to order something different. The principles set out in Chapter 4 will help you to reach an agreement that is broadly reasonable. If the parties have both taken some legal advice before signing the agreement (or even if one party has and the other party has chosen not to) then the court is even more likely to uphold it.
Two other points on separation agreements: firstly, they often include a term along the lines that if the parties are still separated after two years have elapsed since the date of the separation, then either party may then issue divorce proceedings on the basis of two year’s separation, and the other party will consent to the divorce (see Chapter 1, and paragraph 9 of the example separation agreement). Note, however, that such consent is not
binding – consent has to be given to the court at the time of the divorce proceedings, and either party may change their mind before the proceedings are issued. However, a clause such as the one in the example agreement is all that can be done at the time of the separation, and is obviously an indication that both parties intend to consent. The second point is that the clause does not preclude either party from issuing divorce proceedings before the two year period has elapsed, for example if the other party commits adultery during that period.
What if the terms of a separation agreement are breached, for example one party refuses to implement the agreed terms of a financial/property settlement? Well, a separation agreement is a contract, so I suppose that theoretically the other party could sue for breach of contract, but I’ve never heard of it being done. In practice, that party would issue divorce proceedings and apply to the divorce court for a financial/property settlement – see Chapter 4. If a child maintenance agreement is breached, that party can make an application for child support to the Child Support Agency –