Full and Final Settlement in Separation Agreements or Judicial Separation-A 2nd Bite of the Cherry in Divorce?

Does a ‘full and final settlement’ in a deed of separation or on Consent Terms in a judicial separation actually mean what it says?

separation-agreements
A professionally drafted separation agreement is critical

In other words, can either party get a ‘second bit of the cherry’ at the time of divorce?

Firstly, the Courts are obliged under section 20(3) of the Family Law (Divorce) Act, 1996 to ‘have regard’ for any separation agreement entered into:

(3) In deciding whether to make an order under a provision referred to in subsection (1) and in determining the provisions of such an order, the court shall have regard to the terms of any separation agreement which has been entered into by the spouses and is still in force.

However, this does not prevent Courts from making further additional provision to ensure ‘proper provision’ for spouses and dependent children as has been seen in various decided cases and the Supreme Court has found that Courts have ‘very broad discretion’ in these cases.

Section 14 of the Family Law (Divorce) Act, 1996 allows for property adjustment orders to set aside the terms of previous agreements to ensure proper provision at the time of divorce.

Courts have been seen to vary in what weight they attach to previous agreements but the following general points can be made:

  1. Courts will have regard to prior agreements and the circumstances of that time;
  2. Courts’ ability to make proper provision for spouses and dependent children cannot be ousted by a deed of separation or consent terms in judicial separation;
  3. The court will consider the financial resources of both parties at the time of divorce;
  4. More recent settlements will have greater weight than older ones as the circumstances of both parties are less likely to have significantly changed;
  5. A full and final settlement reached at the time of divorce will have greater weight than one reached on judicial separation;
  6. Courts may be less likely to intervene where generous provision was made for the less wealthy spouse in a prior settlement;
  7. Prior settlements are more likely to be revisited where proper disclosure was not made at the time
  8. The source of assets of the marriage, for example inherited assets introduced by one spouse to the marriage, will carry some weight.

All of these cases tend to be decided on the particular circumstances of each case so hard and fast guidelines or rules are difficult to arrive at.