Henry Hood and Eri Horrocks discuss separation agreements and examine the case of Horohoe v Horohoe in STEP Journal

Henry and Eri’s article was published in the STEP Journal, 13 April 2022, and can be seen here.

Henry Hood, Partner, and Eri Horrocks, Associate in our Family & Relationships department, explain that separation agreements offer a practical solution for spouses who choose not to divorce but still wish to formalise their financial arrangements.

While not legally binding in the same way as a court order, these agreements are generally upheld by courts if they are entered into freely, with full financial disclosure and legal advice.

The legal framework draws on two key cases: Edgar v Edgar, which emphasises fairness and informed consent, and Radmacher v Granatino, which supports upholding nuptial agreements unless doing so would be unfair.

The case of Horohoe v Horohoe illustrates both the utility and the risks of separation agreements. Despite minimal legal advice and a mistaken belief about the value of certain assets, the court largely upheld the couple’s 2012 agreement, adjusting it only slightly to reflect the misunderstanding.

This outcome underscores the courts’ respect for personal autonomy, but also highlights the importance of proper legal and financial guidance at the time of agreement. Had the couple formalised their settlement through divorce proceedings, the wife would not have been able to seek further provision later.

Private client practitioners are advised to treat separation agreements with the same seriousness as divorce settlements. Clients should be made aware that such agreements can have long-term consequences and are likely to be upheld, especially if they meet fairness criteria and are supported by full disclosure and legal advice. For those with international ties, understanding how such agreements are treated in other jurisdictions is also crucial.

Read the full article on the STEP Journal website [external link].