Separating from your spouse often can be confusing and/or a frightening time. Things to consider will include how to proceed going forward to formalise your separation and how to share the matrimonial assets. Where parties have reached an agreement, this can be drawn up as follows:
Separation Agreement
A Separation Agreement demonstrates the intentions of both parties following separation and includes details regarding how you have decided to split the financial assets. A Separation Agreement can be entered into at any point following separation and prior to divorce/dissolution proceedings being issued. It is not legally binding as such, but it does carry significant weight with the court providing that both parties have had the opportunity to seek legal advice upon the content and have signed and executed the document appropriately.
A Separation Agreement is often used in cases where parties do not wish to divorce straight away. For example, a recently separated couple who do not want to pursue with a divorce straight away may wish to wait for two years separation or five years separation. The reason being this can keep relations between the parties amicable rather than matters becoming contentious as can be the case with fault-based divorce/dissolution. The Separation Agreement can provide for who is going to apply for the divorce/dissolution at a later date, how the financial assets are to be split and/or whether one party is going to continue to make payments for certain aspects of the family finances etc. A Separation Agreement will then need to be replicated into a Financial Remedy Order in order to finalise matters upon divorce/dissolution proceedings.
Whilst a Separation Agreement is not legally binding in the same way that a Court Order is, it does carry significant weight and could be challenged in Court due to the fact it is often treated as a contract between two parties.
Benefits of a Separation Agreement
- Evidence that you and your spouse have separated.
- It may assist where you and your spouse are both buying properties prior to receiving your Decree Absolute to avoid paying the higher rate of Stamp Duty. This is because married couples are classed as one entity You will however need to seek independent financial advice in relation to Stamp Duty.
- Flexible terms
- Short timescales
Negatives of a Separation Agreement
- Not a Court Order, resulting in a lack of security and certainty.
- The Family Court may be persuaded to vary the terms of the Separation Agreement
- In order to formalise the same upon divorce/dissolution this will need to be replicated which will duplicate costs.
- Implementation of Pensions cannot be done until a divorce/dissolution has taken place.
- Difficult to enforce should one party renege/breach the agreement
Financial Remedy Order
A Financial Remedy Order is an Order that is drafted and filed at Court once the Decree Nisi stage of the divorce/dissolution proceedings has been reached. The Financial Remedy Order sets out the agreement reached between you and your spouse in respect of all aspects of the matrimonial finances. For example, a Financial Remedy Order can include, property, assets, personal property/ furniture, maintenance, pets, pensions, debts, insurances, clean breaks.
The Financial Remedy Order has to be approved by a Judge and providing all is in order and the Judge is satisfied by the information supplied to them that the agreement is fair and/or reasonable then it is then sealed. Should the Judge not be satisfied questions may be raised for parties to answer. Attendance at Court may be required if requested by the Judge. When the Judge is satisfied, they will seal the order at which point the Financial Remedy Order becomes a legally binding document and is enforceable.
Often when parties have entered into a Separation Agreement prior to divorce/dissolution to formalise financial settlement, this agreement is then simply transferred into the terms of a Financial Remedy Order upon divorce/dissolution in order for the same to become legally binding. In essence, the Financial Remedy Order will be a duplicate of the Separation Agreement in respect of the matrimonial finances (provided neither you nor your spouse attempt to vary the agreement).
Proceeding with a Separation Agreement initially and later proceeding with a divorce and Financial Remedy Order will ultimately be more costly. This is why it is often more advisable where both parties agree that a marriage has irretrievably broken down and a reconciliation is not possible, that divorce proceedings are issued sooner rather than later.
Benefits of a Financial Remedy Order
- Legally binding
- Finalises matters between both parties
- Provides clarity and certainty
- Clean Break Order prevents any further claims
- Entered at the outset no additional charges
If you would like to discuss the above further, please contact us.
