The Judicial Separation and Family Law Reform Act 1989, the Family Law Reform Act 1995, and the Family Law Divorce Act 1996 impose on solicitors an obligation to discuss with their clients the possibility of effecting a separation on an agreed basis. In order for a solicitor to enter family law litigation, a solicitor must certify that he/she has given the appropriate advice with regard to alternative dispute resolution.
1. What is a Separation Agreement?
A Separation Agreement is a contract which is legally enforceable. In the case of O M v O M [2004] Mr Justice Brian McMahon considered what constitutes a Separation Agreement. He said that in normal circumstances a Separation Agreement is ‘an agreement made by spouses drawn up to deal with all relevant matters when they have decided to separate’. He said it does not have to be in a certain form, and it would generally be in writing, be witnessed and it should cover all the matters of concern i.e. the division of property, custody of dependent children and maintenance.
2. Will a Mediation Agreement suffice?
It is important to note that a signed mediation agreement will have effect as to a contract between the parties to a settlement except where it is expressly stated to have no legal force until it is incorporated into a formal agreement. Therefore, if you intend to enter into a separation agreement, one must ensure a clause is inserted into your mediation agreement which states that the agreement is not intended to be legally binding.
3. What is the difference between a Separation Agreement and Judicial Separation?
A Separation Agreement is an agreement between two parties which is recorded in a Deed of Separation without recourse to the Courts. However, a maintenance term within the agreement can be made enforceable by way of an application under Section 8 of the of the Family Law Maintenance of Spouses and Children Act 1976. Ultimately, each term represents an agreement between the parties.
Contrastingly, a Judicial Separation is an Order of Court, and the terms upon which parties are to live apart are set out in Orders ancillary to the decree of Judicial Separation which is granted by a Judge. It is not uncommon for parties to agree terms upon which they want their Judicial Separation to be granted, but it is down to a Judge to ascertain if the agreement reached makes proper provision for each party. In a Judicial Separation, it is a judge who will decide whether or not to accept the terms and make them an Order of Court.
4. I have a large pension. Is it possible to bind the trustees of a pension scheme to a Deed of Separation?
The answer is no. A significant difference between a Separation Agreement and a Judicial Separation is the ability to bind the trustees of the relevant pension scheme. The only way to guarantee an adjustment of a pension scheme is by way of a pension adjustment order made by a court ancillary to a decree of Divorce or Judicial Separation. Therefore, if you wish to make provision for your spouse in relation to pensions, or your spouse intends to afford you a proportion of their pension benefits, it is strongly advised to issue Judicial Separation proceedings.
5. Can I apply for a Judicial Separation after I enter into a Separation Agreement?
You cannot apply for a Judicial Separation when you already have a separation agreement in place which has been made an order of court. In order to overcome the limitation in relation to pensions, you can make an application for a Decree of Divorce once you have been separated for a period of two out of the previous five years and within the Divorce seek Pension Adjustment Orders.
6. What is the role of my solicitor?
A solicitor must ensure that an agreement reached by parties in mediation is in the best interests of their client before it is transferred into a legally binding document. It is also important for a solicitor to ensure the following:-
• That the parties marriage is valid.
• That the language adopted is clear in its intent and effect.
• That neither of the parties were coerced into signing the document.
• That all relevant information was disclosed prior to signing the agreement.
• That the terms agreed are capable of being implemented.
7. Are there Remedies for Breach of a Separation Agreement?
As discussed, a Separation Agreement is a contract, and a spouse can sue for breach of contract in the event of non-compliance. The agreement can be made a rule of court, and a maintenance provision within the agreement can be enforced pursuant to Section 8 of the Family Law Maintenance of Spouses and Children Act 1976.
In conclusion, if parties can formalise their separation in the context of a Separation Agreement, it is likely to involve less conflict and it will avoid the necessity to seek the direction of the Courts.
Please contact our Family Law Team on 01 296 0666 as soon as possible if you wish to enter into a Separation Agreement with your spouse.
