When divorce proceedings are commenced, the court has power to make a financial order which directs what is to happen to the matrimonial assets. The court order is binding and enforceable if necessary. Before divorce proceedings are commenced, all financial claims between you and your spouse remain open and either party may make a claim on the capital assets (including property) income and pensions belonging to the other party and at any time. This remains the case even if you are divorced and no financial order has been made by the court. Consequently there is no certainty and finality in respect of financial arrangements until such time as the court seals a financial order.
If you do not wish to take divorce proceedings at this time but have agreed with your spouse what is to happen to the matrimonial assets, it is possible to enter into a deed record what has been agreed and known as a Separation Agreement.
It is still possible for either of you to make a subsequent application to the Court for financial relief following divorce proceedings and in that case the Court has a duty to consider all the circumstances of the case as they may then be in deciding whether to alter what has been agreed. The Court must consider a number of statutory factors and any change in circumstances since the date of the Separation Agreement.
The statutory factors the court must consider are as follows:
The Income Earning Capacity Property and other financial resources which each of you has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which would be in the opinion of the Court reasonable to expect a person to take steps to acquire.
The financial needs, obligations and responsibilities, which each party has or is likely to have in the foreseeable future.
The standard of living enjoyed by the family before the breakdown of the marriage.
The ages of each of you and the duration of the marriage.
Any physical or mental disability of either of you.
The contributions which either of you has made or is likely to make in the foreseeable future of the welfare of the family including any contribution by looking after the home or caring for the family.
The conduct of each party if that conduct is such that it would be in the opinion of the Court inequitable to disregard it.The value to each spouse of any benefit which one spouse because of the divorce will lose the chance of acquiring (most usually pension provision).
If the circumstances warrant it, the Court can then alter the terms of the Separation Agreement. Therefore, separation agreements cannot achieve the same degree of finality as a court order. However, provided both parties have taken independent legal advice prior to signing the Separation Agreement, and have fully disclosed their finances and any other relevant circumstances, then it is as watertight as you can make it and less likely to be altered by the Court.
Failure to disclose any relevant information may result in the agreement being set aside by the other party or overturned by a court.