Separation Agreement upheld by family court after 22 years

The court has ordered that a separation agreement signed by a husband and wife in 1991 should be made an order of court.

A separation agreement is entered into after a husband and wife separate to set out how the parties’ assets will be divided between them on divorce. The agreement is most commonly used when the parties do not intend to divorce straight away and is often then converted into a Consent Order when the parties do divorce in the future. The agreement itself is not legally binding until it is approved by a judge as a Consent Order. Provided the agreement was properly entered into and there has not been a significant change in circumstances, the separation agreement is usually followed by the court in later proceedings.

In T v T [2013] EWHC B3 (Fam), the court heard that a separation agreement was signed by the parties in 1991, approximately 22 years ago. The agreement conformed with all the requirements of a concluded agreement, but had never been put before the court for approval in the form of a Consent Order. The wife gave no explanation for that failure, whilst the husband maintained that he had expected his solicitors to deal with obtaining the court’s approval.

The wife’s financial position had taken a downturn over the years whilst the husband’s wealth had increased. The wife now wanted to pursue an application for financial remedies stating that her needs had changed. She argued that the agreement was peripheral to the case and not enforceable. The husband applied to the court for the wife to show cause as to why the separation agreement should not be made into a binding court order. The husband argued that the parties had relied on the separation agreement as a basis for their independent lives since their separation. The wife argued that there had been material non-disclosure, she had been under pressure from the husband at the time, and that she had been bullied by her solicitor at the time into entering into the agreement.

The judgment reviewed the case law, and the approval of the approach of the UK courts to agreements generally as set out in Radmacher  v Granatino [2010] UKSC 42, and found that the evidence did not support the wife's arguments. Both parties had been under pressure for different reasons to bring matters between them to a conclusion. There was nothing to suggest that the agreement was not fair at the time and that the wife had not been competently advised. Mrs Justice Parker considered whether the parties had reached an agreement which they intended would resolve the matrimonial affairs and how they had conducted themselves.

The court held that this was an agreement which was freely entered into, intended to be acted upon, and was acted upon by both parties. In those circumstances it must be regarded as being of magnetic importance. The court was under no duty to examine the current finances of the parties. The length of time since the agreement was entered into further secured it rather than undermined it. The husband's application was therefore granted, with costs against the wife.

This case highlights the importance of entering into a separation agreement if the parties separate to help protect against financial claims by a former spouse in the future, even after divorce. Although not binding, the agreement will usually be followed by the court if it has been freely entered into. The case of T v T shows that separation agreements are held in high regard by the courts, even after long periods of time.