What is a Separation Agreement?
A separation agreement is a private written agreement between separating partners setting out how the assets are divided in a financial settlement i.e. who gets what, who pays what, and potentially arrangements for children. It can be useful where you are separated but not yet ready to divorce. However, it is generally not itself legally binding, so it can be difficult to enforce if one person later changes their mind.
What is a Consent Order?
A consent order records a settlement reached between the parties in a divorce and the family court would be asked to approve it. It can cover things such as property, business, savings, pensions, maintenance, clean break etc. Once approved by the court, it becomes legally binding when the divorce/civil partnership dissolution is finalised.
Which is “best”?
There isn’t one answer for every couple. A separation agreement can be useful as an interim arrangement, particularly if you are separated but not divorcing yet. If you want the agreement to have stronger legal enforceability and finality, a court-approved consent order is generally the relevant mechanism for turning an agreed financial settlement into a binding court order.
Importantly, a separation agreement does not automatically become a consent order. You normally need to have the agreement converted into a draft consent order and submitted to the court for approval.
How is a Consent Order enforced?
Once a consent order is approved by the court, it becomes legally binding when the divorce/civil partnership dissolution is finalised. If someone breaches the order, enforcement proceedings can be issued for the provisions of the order to be complied with.
Can you enforce a Separation Agreement?
A separation is generally not itself legally binding. It can sometimes be enforced as a contract, but it is not automatically a binding contract simply because both parties signed it.
The court can look at ordinary contractual requirements, such as:
There is an important distinction with married couples: the family courts have considerable powers when dealing with financial arrangements on divorce. The existence of a separation agreement does not necessarily prevent the court from considering the parties’ financial circumstances. The court may give substantial weight to an agreement, but it is not necessarily treated like an ordinary commercial contract.
If someone breaches the separation agreement, if it is enforceable as a contract, the usual route may be a civil claim for breach of contract, potentially seeking damages or, in appropriate circumstances, an order requiring performance of the contractual obligation.
That is different from enforcing a consent order, where you are enforcing an existing court order through the family court.
In Conclusion…
A separation agreement records what you have agreed whereas a consent order gives that agreement the authority of a court order.
If you are settling finances following a marriage or civil partnership, it is important to consider getting the financial agreement turned into a consent order in order. A consent order will bring finality to your financial matters and the court can assist to enforce the provisions if necessary. Furthermore, future financial claims can be dismissed with a clean break, whereas a private agreement cannot achieve this.
How can we help?
We understand that it can be difficult to deal with the financial matters on a divorce. Our team of family law experts can offer guidance and support to reach the right outcome for you. Please speak to a member of our family team on 01926 422 101 or leamspa@fieldoverell.com
Submit your enquiry and a member of our team will be in touch.
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Leamington Spa, CV32 5JS
