Ever heard of the terms “marital settlement agreement” or “divorce settlement agreement”? In essence, a marital settlement agreement is a contract between two parties that states how parties at the end of their marriage would like to resolve issues regarding their divorce.
Unlike a post-nuptial separation agreement usually created even when two parties may be in a smooth marriage, a marital settlement agreement is made in contemplation of divorce.
Significance of a Settlement Agreement
Our courts have stated that even if a settlement made in contemplation of divorce purports to be comprehensive and has been voluntarily entered into, the parties are not necessarily bound by it.
What then, is the significance of a settlement agreement if parties may not eventually be legally bound?
- While not conclusive, our courts will decide the amount of weight to give to such agreements.
- Usually, where parties have properly and fairly come to an agreement with the benefit of legal advice, the court generally attaches significant weight to the agreement unless there are persuasive grounds to convince the court that doing so would affect injustice.
- This is a logical approach as parties to a marriage are usually in a better position to determine matters relating to their divorce as compared to the court which is often limited by the fact-finding process in litigation. (eg. parties would know best how to divide their matrimonial assets in a just and equitable manner)
Thus, when such agreements are present, courts should not lightly depart from them.
Benefits of a Settlement Agreement
- It reduces the chances of an acrimonious litigation process if you and your spouse can agree on all the terms relating to your divorce before you commence the process.
- Instead of having an outside third party like the court determine matters of your divorce, you and your spouse will be able to negotiate and control the outcome of the agreement.
- It would save you much more time and legal costs when you decide to get a divorce as compared to a lengthier litigation process that would inevitably be more financially draining.
What To Include In A Settlement Agreement
As a settlement agreement is made in contemplation of divorce, all matters relating to a divorce should be included in the agreement. This would include:
The reason for the irretrievable breakdown of the marriage
- Unreasonable Behaviour
- Desertion for 2 or more years
- Separation for 3 or more years with consent
- Separation of 4 or more years without consent
- Maintenance (of Wife and Children, if any)
- Division of matrimonial assets
- Child-related issues (custody, care, and control, access)
A divorce does not have to be acrimonious or cause you and your family stress and anguish. Feel free to get in touch with one of our trusted divorce lawyers who would be able to help you through this difficult time.