What is the difference between a Separation Agreement and a Financial Order?

To answer this question, it is important to understand the difference between a separation and a divorce.

Divorce is only available for married couples and is the only way to formally end a marriage. Separation is an option for married couples that choose separate without divorcing and is also available to couples that are not married but that decide that they no longer wish to be together. A separation does not end a marriage and therefore does not end the financial claims that each spouse may have regarding the other’s finances.

There are many reasons why a couple may choose to separate while remaining married such as for religious reasons or because they may decide to wait until a they have been separated for a period of two years before petitioning for divorce so that the divorce can be based on a period of separation rather than one of the fault-based facts.

What is a Separation Agreement?

When a couple is separating, it is important for them discuss how the assets and the debts that may have accrued throughout the relationship shall be divided. If there are children of the relationship, it is also important to try to agree a schedule for when each party shall see the children and to calculate whether any financial support will be payable.

When these matters have been agreed, they can all be included within a Separation Agreement. A Separation Agreement is not an Order of the Court and will not be sent to a Judge for approval. It is a document that is drafted to reflect the agreement reached and the separating couple signs it to confirm their agreement.

If the couple change their mind about the agreement in the future, it can be amended to reflect the new agreement and it can then be re-signed. Although a Separation Agreement is not a Court Order, if it is drafted correctly it could be considered to be a legal contract which could be challenged in Court. However, the agreement will not be treated in the same way as an Order which has been approved by the Court.

What is a Financial Order?

It is only possible to submit a financial order to the Court after divorce proceedings have been issued and the Decree Nisi has been pronounced.

When a divorcing couple reach an agreement in respect of the finances, this should be drafted into a Consent Order. This is a document which both parties shall sign and the signed order will then be sent to the Court for approval. When a Judge has approved the Order, it will be sealed with the Court stamp and it will be legally binding.

If the parties wish to amend the Order after it has been approved and sealed by the Court, one party will have to make an application to the Court to vary the Order. If the terms of a Consent Order are not followed by one or both parties, it can be enforced through the Court and there may be consequences for the party who is in breach of the order.

Whether you are separating or divorcing, it is always advisable to take legal advice to ensure you’re your documents are appropriately drafted and accurately reflect the agreement you have reached.

Watson Thomas Solicitors have offices in Fleet, Guildford, Bracknell, Camberley, Farnborough and Woking.

Watson Thomas are a dedicated team of Family Lawyers who specialise in all aspects of family law. If you have any questions regarding resolving matrimonial issues during divorce please do get in touch.

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