A separation agreement is a contractual agreement between two parties who have separated, or are in the process of separating outlining the manner in which their assets should be divided.

A separation agreement can be particularly beneficial in allowing parties to sort their matrimonial finances in an amicable manner without the need for hostility, as opposed to engage in expensive and lengthy Court litigation.

Parties to the agreement are at a discretion to decide the contents of their separation agreement. However, it is common such agreements to include a provisions outlining that the parties consent to live separately, any responsibilities and commitments towards each other and also arrangements in respect of any children or maintenance towards the family.

Such agreements can also incorporate provisions for the division of matrimonial assets, finances whether in joint or individual names, the division of trusts, how both individuals will deal with debts, inheritance, and the division of personal possessions such as expensive cars or jewelry.

The law applicable to Separation Agreements is akin to the law applicable to Pre-Nuptial and Post Agreements, which effectively means that although such agreements cannot supersede the decision of the Court in relation to financial remedy proceedings. In proceedings for a financial remedy, the Court will be inclined to take into consideration and uphold the terms of a separation agreement into an Order, providing that the terms of the agreement are ‘fair’ and the agreement has been entered into at the free will of both parties.

In considering fairness, the Court will have regards to all circumstances including, whether parties have exchanged sufficient disclosure of financial assets, had received full independent legal advice, whether the terms of the agreement will fulfill the essential needs of both you and your spouse on divorce, whether you or your spouse were under duress, or any issues of fraud arise, and lastly whether parties intended to be bound by the terms of the pre-nuptial agreement.