Do I divorce or separate?

Separation Agreements

What is a separation agreement? 

A separation agreement is a contract that outlines a financial settlement between the parties involved. While this agreement is binding for the parties, it does not hold the same weight in subsequent divorce proceedings before a Judge. 

Within a separation agreement, you can set out your financial arrangements as agreed between you, as well as including any desired additional provisions, such as those concerning children or child maintenance. 

If the other either party tries to renege on the agreement during later divorce proceedings, that party will be asked to ‘show cause’ i.e., convince the Court as to why the Judge should not simply make a Financial Order in the same terms as the Separation Agreement.

It is essential in a separation agreement for both parties to exchange financial disclosure and seek independent legal advice to affirm their intention to create legal relations, otherwise, the agreement is unlikely to be binding.

When would I need a Separation Agreement?

There are several circumstances in which you may find yourself in need of a separation agreement. These include: 

If you have separated.

If there is a possibility of a reconciliation.

You are opposed to divorce for religious/moral reasons.

If you are not ready to divorce but have agreed a financial settlement.

If you wish to evidence the date of separation e.g. to prevent a dispute as to the date of separation within later divorce proceedings. This may be the case when trying to avoid responsibility for post-separation debt.

If you have reached a financial agreement and you want this recorded so that there are no disputes as to the terms of the agreement in the future.

If time is of the essence: it is quicker to draft a Separation Agreement than wait for divorce proceedings to conclude.

Does the Court have to agree with the agreement you reached?

In short, no. If the agreement is deemed unfair by the Judge, then the Judge has the discretion to vary the agreement during divorce proceedings. However, the Separation Agreement will be treated as persuasive evidence in Court.

Why divorce instead?

There are several reasons as to why you might choose to get a divorce instead of a separation agreement, but as is often the case, what is best for you will be dependent on the individual circumstances of your case. 

Some of the reasons for divorcing rather than entering into a separation agreement include: 

• Your marriage is dissolved which allows you to remarry if you choose. 
• You can finalise finances by setting out the terms of your agreement (or earlier separation agreement) in a Consent Order.
• If you file a Consent Order, once approved you can secure a ‘clean break’. Without a clean break, you cannot assume finances are settled as either party could renege on any previous  agreement and still apply to the Court for a more favourable settlement. 
• Once you secure a clean break within divorce proceedings, the parties cannot renege on the terms of settlement.  A clean break, therefore, protects your assets/future assets from further claims against them by the other party in respect of the marriage.

How can Hegarty help? 

If you are not sure whether a divorce or separation agreement is appropriate for you, do take advice from one of our expert family law team, who can advise you of the pros and cons of both and help you to decide which would be most appropriate in your circumstances.