C. Separation agreements
There may be an agreement by the parties agreeing to live separately before proceeding to divorce, with terms such as the period of separation, arrangements for children and the matrimonial finance, assets or maintenance. The separation agreement could not include a term restricting the right to apply to the court for financial arrangement, as the court has the right to determine the appropriate reliefs.
The separation agreement is prima facie unenforceable until and after the court determines whether it is fair to hold the parties to the terms of the agreement. The court would enforce the agreement on a finding that it is voluntarily entered into by each party with a full appreciation of its implication. The party seeking not to embrace the agreement must prove that there are good and substantial grounds showing that injustice would be done by holding the parties to the terms of the agreement, such as a compelling case of drastic change or unforeseeable circumstance, unfair or unconscionable circumstances surrounding the conclusion of the agreement, non-disclosure of material information etc.
The separation agreement could be made orally, but the parties will have difficulties proving its existence and formalities. It is advisable that a separation agreement should be clearly and formally drawn in writing, with separate and independent legal advice sought before the signing of the agreement.
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