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Consent orders v separation agreements

Consent orders v separation agreements

“Can I have a Separation Agreement and is it cheaper than a divorce?” 

This is a question that I have been asked on many occasions.  Some potential clients ask if it is possible to get a “legal separation”.  When faced with this question it is important to explain clearly the differences between a Separation Agreement and a Consent Order.

A Consent Order is a document which can be produced to the Court after the decree nisi stage of a divorce/civil partnership setting out the terms of a financial arrangement reached between the parties.  The agreement will be drafted in a specific format to ensure that all financial issues between the parties are dealt with and can include provision for dealing with the sharing of pensions.   The parties should have exchanged financial disclosure before making such an agreement and a summary of the parties’ financial position will be provided to a Judge to consider. Even though the parties have agreed the terms between them, a Consent Order cannot become a final order until it has been approved by a Judge.   This is by no means automatic.    The Judge will consider whether the terms of the proposed order are fair bearing in mind the respective financial positions of the parties, their ongoing needs and the individual facts of the matter.  Only once the Judge is satisfied that the proposed order is fair can it be approved and sealed.  An approved order comes into effect upon decree absolute.  At this stage it will have the effect of dismissing all further claims arising under the marriage/civil partnership and the terms can be enforced by the court if it is not complied with. 

A Separation Agreement is similar to a Consent Order.  These are generally used by separating couples if they are not yet ready to dissolve their marriage/civil partnership or wish to wait until they have separated for 2 years before filing a divorce petition or dissolution.   There are a few disadvantages in choosing to deal with matters by way of a Separation Agreement rather than a Consent Order.

Separation Agreements cannot be approved by a Judge. The terms cannot be enforced in the event that one party breaches the agreement or wishes to change the terms. The parties’ financial claims against each other therefore cannot not be dismissed and it would remain open to either party to make an application for financial arrangements to be dealt with by the Court.

If a Separation Agreement is presented to the Court within later divorce proceedings a Judge will have discretion to change the terms, particularly if circumstances have changed since the Separation Agreement was signed. 

Although the parties’ intentions regarding pension sharing and attachment orders can be recorded in the agreement, such arrangements can only be dealt with by way of order and can only be actioned upon Decree Absolute/Dissolution of Civil Partnership.    This could potentially affect the previously agreed calculation of the pension provision to be given to the receiving party.  This must therefore be considered very carefully at the time of agreement.

This is not to say that Separation Agreements cannot be useful.  Drafted carefully, with the parties both having the benefit of specialist legal advice and financial disclosure, the agreement can be used to evidence an agreement that has been made by the parties at the point of separation in contemplation of a later divorce/dissolution of partnership.  Whilst not binding, the terms of a Separation Agreement could be considered when dealing with a final order and often a clause is inserted into a Separation Agreement to record that it is the parties’ intention for the document to be converted into Consent Order upon divorce. 

It is important for separating parties to consider whether they wish to enter into a Separation Agreement or simply proceed with divorce proceedings immediately if there is no chance of reconciliation to avoid a duplication of costs.  An initial meeting with a specialist family lawyer can be useful to discuss the options regarding divorce and financial matters to decide which option is best in each individual case.

If you need advice or assistance regarding any family law matter, please contact Nina Roby. We are able to offer an initial fixed fee meeting at a reduced rate.  

 Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances. 

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