separation agreement

An agreement between husband and wife releasing each other from the duty to cohabit. Such an agreement will only be valid (subject to the ordinary rules of the law of contract) if the marriage has already broken down; it will be void (contrary to public policy) if they enter into it to provide for the contingency that the marriage may break down at some future date. Separation agreements often contain further clauses (e.g. nonmolestation clauses, maintenance clauses, dum casta clauses) or an agreement not to bring other matrimonial proceedings based on past conduct ('Rose v Rose clauses'). A spouse may also relinquish his rights or powers in relation to his children, but the court has an overriding discretion not to enforce such provisions if they are not for the children’s benefit. A separation agreement in writing may be a *maintenance agreement and governed by the Matrimonial Causes Act 1973.