17 April 2013, by Taylor King Family Law Solicitors
The court in deciding what financial order should be made in divorce proceedings will taken into account any separation agreement that the parties entered into prior to the divorce. The onus is upon the party seeking to depart from the agreement to convince the court that he/she has reasonable grounds to do so.
The case of T v T  EWHC B3 (Fam) involved an application by a husband to show cause why a separation agreement he entered into with his wife should not be made into an order of the court.
The separation agreement was signed on 26th June 1991. It recorded that each party had taken separate and independent legal advice and had made full financial disclosure. It had been signed by both parties and conformed to all the requirements of a concluded financial agreement, including provision for a clean break. It had however never been put before the court for approval to be made into a consent order. The husband stated that he expected his solicitors to have done so and always regarded the matter as resolved. There had been no reconciliation and the agreement was relied upon in order to effect the independent lives that were currently being led by each party.
The wife applied for a financial remedy and wanted a full trial. She argued that there had been material non disclosure and had been under pressure from her husband and was bullied by her solicitor at the time of entering into the agreement. She also stated that the husband had deliberately not ensured that the agreement was made into a court order so that he could preserve his position and make a later application to the court.
Parker J found that the evidence did not support the wife’s arguments and both parties had been under pressure to bring matters to a conclusion for different reasons. There was also nothing to suggest that at the time the agreement was not fair and the wife had not been properly advised. The Judge asked herself: (i) had the parties reached an accord by which they intended to resolve the matrimonial affairs, and (ii) how have they conducted themselves. She held that there was no doubt that each party intended to resolve their financial affairs at the date of the agreement in 1991 and the wife, in reality, had been prepared to rely on the agreement. She simply saw it as the duty of the husband to support her because she was currently in a worse financial position that she had contemplated in 1991.
Parker J also held that it was an agreement which was entered into, intended to be acted upon and acted upon. The parties relied on it and gained peace of mind from it for over 20 years. In those circumstances the existence of the agreement must be regarded of magnetic importance. The overriding factor was the agreement and the importance that each party placed on it.
The husband’s application was therefore granted and an order incorporating the separation agreement was made, with costs against the wife.
Taylor King often acts on behalf of clients who want to draw up a separation agreement. We advise clients that they must make full disclosure of their financial situation and that their spouse should seek independent legal advice from a specialist family lawyer who should certify that they have provided such advice.