What is a Deed of Separation?
Sometimes a couple is ready to seperate from each other, however, they do not want formal divorce for some reason. In this situation, the couple can reach an agreement on the arrangement of basic issues during their seperation.
What Topics to be Covered in Deed of Seperation?
Usually a Deed of Seperation will include financial arrangements during seperation, such as how assets are to be divided, who has control over the matrimonial property and who is to pay for what. If there is any child, the Deed of Seperation will also cover arrangements for any children involved and child maintenance. The agreement sometimes provide for what the process will be when the time comes to file for divorce.
The Legal Nature of the Deed of Seperation
The Deed of Separation is not legally binding. However, it can be used to protect yourself financially against claims being made for more money if and when divorce proceedings are filed. If an agreement is in place which has been working for a significant period of time and full legal advice was obtained before it was signed, this will make it difficult for either party to convince the court to ignore it and reassess a couple’s financial situation.
It is very important for both parties to have legal advice before signing a Deed of Separation to ensure there are no mistakes and that both parties are happy to enter into this agreement without feeling pressured. Each party will need to fully and honestly disclose their financial position along with evidence of any assets and liabilities. This is very important as, if it is found that there are undisclosed assets, then the agreement could be challenged on the basis of fraud. Once information has been exchanged, a solicitor will prepare the document for each party to sign.
Can the Court Change the Agreement During a Later Divorce Proceeding?
Even if the Deed of Separation states that the terms of agreement are in full and final settlement, the court can still review the agreement to try to change it. It is only possible to achieve a watertight “clean break” if you undergo divorce proceedings and enter into a consent order.
However, if at the time the Deed of Separation was agreed the parties had the opportunity to, and did take, independent legal advice and both made available to the other person full details of their financial positions, it is far less likely that the agreement will be overturned by the court unless there has been a significant change in circumstances.
For matters regarding separation agreement in Hong Kong, please do not hesitate to contact our Hong Kong family law practice team for a consultation by sending email to [email protected]