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25 April 2013

High Court upholds separation agreement 22 years later

In the recent case of T v T 2013, the Court held that a separation agreement signed by the parties in 1991 should be made an Order of Court.

In this case, the Court heard that the separation agreement was signed by the parties back in 1991, 22 years ago.  However, whilst all of the requirements of a concluded agreement were present, the separation agreement was never put before the Court for approval in the form of a Consent Order.

The wife wanted to pursue an application against the husband for a financial remedy and argued that the separation agreement could not be relied upon.  However, there had been no reconciliation and the parties had relied on the agreement as a basis for their independent lives on separation.  The agreement also included a clean break.

The Judge reviewed the case law and the approval of the approach of the UK Courts to post-nuptial agreements generally as set out in the landmark case of Radmacher (formerly Granatino v Granatino) 2010.  The Court found that they were under no duty to examine the parties’ current means.  The length of time since the agreement was entered into was relevant, and the husband’s application was therefore granted with costs against the wife.

The Court held that the separation agreement was an agreement which was entered into and intended to be acted upon. Because of that, the agreement must be regarded “of magnetic importance”.  The Court found that there was nothing to suggest that the agreement was not fair at the time and that the wife had been competently advised by her solicitor.

Emma Alfieri, Family Practitioner in our family team, comments that whilst marital  agreements are not currently legally binding, this case further demonstrates the decisive weight that the Court are increasingly giving to such agreements, provided certain conditions are met.

The Law Commission is still considering the proposals as to whether such agreements should be made legally binding and the final recommendation is expected in Autumn 2013.

For further advice on separation agreements or any other family law matter, please contact us.

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