分居協議書 Separation Agreements

 分居協議書

「分居協議書」指夫妻雙方在開始分居時或分居後所簽訂，用以處理離婚後財產分配、贍養安排及其他財務安排，如信託、公司股份轉讓等的協議書。

根據《婚姻法律程序與財產條例》第14條，法律視分居協議書為有效契約。儘管如此，若果此後有任何一方提出離婚或裁判分居訴訟，分居協議書的存在並不能阻止法庭頒布與分居協議書內容有異的命令。原因是契約中限制任何一方對法庭提出申請的條款在法律上均屬無效。一般而言，法庭會尊重已簽訂的分居協議書，並按協議中的條款實行之，除非法庭認為在雙方簽訂契約時有無法預計的情況，或實行契約會對其中一方構成不公。

當夫妻雙方對有否簽訂有效的分居協議書，或對協議書的條款有爭議時，法庭亦會就此作出裁決。例如在WKK aka KKW v LMY aka MYL [2015] HKCU 1021一案中，夫妻雙方就丈夫有否同意持續地向妻子提供贍養費直至妻子再婚一問題有爭議。法庭最終裁定雙方過去的訊息來往只是就離婚後的安排作出商議，而丈夫過往是因內疚及受壓力下而提供妻子財政援助，雙方的討論從未有構成一份具約束力的協議書。如有需要，歡迎致電或WhatsApp 69776708 林先生查詢。

Separation Agreements

A separation agreement is an agreement entered between couples on or during their separation, agreeing on terms for division of property, maintenance for support of a spouse and other financial arrangements such as trusts, company share transfers, etc.

Separation agreements are regarded in law as valid contracts as according to section 14 of the Matrimonial Property and Proceedings Ordinance. However, if any proceedings for divorce or judicial separation are issued subsequently, the existence of an agreement does not prevent the Court from making a different order. The reason was that any term in the agreement that restricts the right of any party to apply to the Court in future proceedings shall be void. The Court generally respects the concluded agreements and upholds them unless there is a compelling case of unforeseeable circumstances or having the contract enforced would impose injustice to either party.

When the parties have dispute on the existence of a valid separation agreement, or on the terms of agreement, the Court may rule on this point. For example, in WKK aka KKW v LMY aka MYL [2015] HKCU 1021, the parties had dispute on whether the husband had promised to provide continuous maintenance to the wife until her remarriage. The Court found that the SMS messages between the parties were merely negotiations about the post-divorce arrangements and the husband’s previous financial provisions to the wife were done under guilt and pressure. The parties had never formed a binding agreement.