Legality of waiving spousal maintenance in a separation agreement

[mrbongos]

Hi,

During mediation my spouse and I have agreed that I pay maintenance for the kids and none for her. My solicitor wrote it into a Terms of Settlement doc like so:

• They agree that on the execution of these terms [ME] will commence payment of the monthly sum of €XYZ.00 recurring to account number (INSERT) for the benefit of the children, the said figure to be apportioned as to 54% for Child A and 46% for Child B

• In consideration of the sum of €ABC.00 paid by [ME] to [SPOUSE], on receipt of these executed Terms of Settlement, [SPOUSE] waives and abandons any future claim for spousal maintenance from [ME] and further waives any claim on the matrimonial assets of the parties. Both parties further waive any claim on the current or future assets of the other.

Spouse's solicitor is claiming that a judge will laugh at her for allowing the 'waives and abandons any future claim for spousal maintenance' clause - so is insisting on removing it.

I am aware that spousal maintenance agreements are not legally enforcable and can be overturned by a judge. But I find it bizarre that I'd sign an agreement with no reference to spousal maintenance at all - or is it normal? I would've thought that a Deed of Separation/Terms of Settlement would typically specify spousal maintenance even if zero - and that would typically influence a judge, since both parties have agreed to it.

So my questions are basically, a) is it okay to have the 'waive spousal maintenance' clause in signed separation agreement, and b) if not, is it okay to have 'zero spousal maintenance' instead or is there not difference between that and waiving? (and I know any and all agreement on spousal can be overturned later)

Cheers

 

[ClubMan]

Surely your own solicitor is best placed to advise you on this matter?

 

[DannyBoyD]

The responsibility to maintain a spouse is never extingushed; trying to include a clause that overrides the law is unlikely to succeed.

Zero spousal maintenance would not be unusual these days; but you can't attempt to remove the right to claim it at any time in the future.

 

[mrbongos]

Surely your own solicitor is best placed to advise you on this matter?

The clauses I quoted above are from my solicitor, thus their advice. Spouse's solicitor is objecting to it, and thus opposite advice. Hence my question to the forum as to which is right.

Zero spousal maintenance would not be unusual these days; but you can't attempt to remove the right to claim it at any time in the future.

I am aware of that. The question was more is it usual to include the spousal maintenance in form of waived clauses, or zero maintenancre clause, in separation agreement that is signed before judicial proceedings? I know it can be overturned in future.

I would've thought spousal maintenance is clearly detailed in an agreement, even if zero, as it will have some influence on a judge, to show that at least at one point the parties were in agreement on that maintenance - as opposed to having no clause at all, implying perhaps no agreement ...?

 

[DannyBoyD]

If you are getting agreement to waive any interest in joint assets, I think I wouldn't argue over the remote chance of future spousal maintenance.

Incidentally the obligation to maintain applies both ways.

 

[ClubMan]

The clauses I quoted above are from my solicitor, thus their advice.

Why do you seem to not trust their professional advice/opinion on the matter?

Spouse's solicitor is objecting to it, and thus opposite advice. Hence my question to the forum as to which is right.

Your spouse's solicitor is not offering you advice.
Or, if they are then you should ignore it and be guided by your own solicitor.

 

[Clamball]

I would ask for it to be changed to €0 spousal as agreed. All of the maintenance figures can be revisited so it is just a point in time agreement. Now in 2023 it can be 0.