While separation agreements are not strictly binding in England and Wales, if you do get divorced, the courts will consider the arrangement you have previously agreed to. In addition, the terms of your agreement may be decisive in any future dispute you may face, unless it is unfair to the parties involved.
If you are about to sign a separation agreement, take some time and think it through. You should not enter into this type of contract unless your intention is to be bound by its terms.
Some of the factors that the courts will take into account in determining whether or not an agreement will be considered ‘unfair’ include:
– Whether or not both parties had independent legal advice before entering into the agreement. – Whether both parties provided full disclosure of their finances. – How recent the agreement was – it is common for these documents to include provisions that allow either party the opportunity for review after some time has passed. – Whether one party was under pressure or unaware about what they were signing. – Since the courts are looking for fairness, they will take into account any fraud or misrepresentation.
– Whether or not both parties followed legal contractual requirements when entering into the agreement, including making sure there is language saying that their intentions are “to create legal relations” and to execute the agreement as “a deed”.
Keep in mind that there is always a chance the courts might uphold part of an agreement while considering another section to have been unfair.