Are there situations where it is preferable to have a consent court order instead of a separation agreement? The answer is yes. In this article, BC family lawyer Valerie M. Little will discuss the differences between separation agreements and consent court orders and why married or cohabiting spouses may want to get a consent court order to resolve their family law issues.
Understanding separation agreements and consent court orders
If separating spouses agree about how to resolve their family law issues (including child support, spousal support, parenting time, and division of property and debt), they can make a separation agreement, or they can ask a judge for a consent order that reflects their agreement:
A separation agreement is a private contract negotiated between the spouses (ideally, with the guidance and independent legal advice from an experienced family lawyer). Spouses do not need to go to court or to start family law proceedings to enter into a separation agreement, but if the spouses have started a family law action, they can agree to settle the issues between them by way of a separation agreement at any time.
A consent court order is a ruling that a judge makes after reviewing the terms the spouses have agreed or “consented” to. If the judge is satisfied that the terms the spouses agreed to are reasonable, the judge will approve and sign off on the terms, making a binding court order. Spouses can ask for a consent court order to be made at any time prior to trial during their family law case (for example, at a Judicial Case Conference, or by filing a "desk order" so that they do not have to appear in court unless the judge requires more information).
Differences between a separation agreement and a consent court order
While both are rooted in mutual agreement and both are legally binding, there are some key differences when it comes to challenging and enforcing separation agreements and consent court orders:
A separation agreement can be challenged and varied or set aside by the court for a number of reasons, such as significant unfairness, lack of financial disclosure, or lack of independent legal advice (see here for our BC family lawyer’s discussion of when a separation agreement can be contested), whereas there are much more limited grounds under which a consent court order can be set aside or changed by the courts. Unlike with a privately negotiated separation agreement, the parties to a consent court order had to satisfy the judge that the terms were reasonable, and there is an assumption that the parties to a consent court order had reasonable knowledge of the circumstances in existence when they agreed to the terms, and that they could reasonably foresee how their circumstances might change in the future.
If a separation agreement is not followed, a party to the agreement will have to take extra steps to have it enforced by the courts. It is possible to bring a court application to enforce a separation agreement relying on contract law principles, or the agreement can be filed with the court registry, which would then allow for steps to be taken to enforce the agreement as if it was a court order. In contrast, a consent court order takes effect from the moment it is made by the judge and can be enforced right away. If a party to a consent court order does not follow the terms of the order, that party is at risk of being found in contempt of court, and there are enforcement mechanisms that can be brought into play, such as garnishment, a fine, or imprisonment.
Do you need legal advice from an experienced BC family lawyer?
Are you wondering whether you should get a separation agreement or consent court order to resolve your family law issues? Depending on your circumstances, you may want the increased certainty and protection that comes with a consent court order. The team at Valerie M. Little Law Corporation is here to support you and guide you to make informed decisions. No two situations are alike, so we make it a priority to deliver individual care and attention. Ms. Little, who has been practicing family law for over 30 years, will take the unique circumstances of your situation into account before advising you on the best course of action. For more information about our family law office or to schedule a consultation with our family lawyer, please call us today. Our law offices are centrally located in New Westminster, and our family lawyer serves the surrounding areas of Burnaby, Maple Ridge, Coquitlam, Port Coquitlam, Vancouver, North Vancouver, West Vancouver, Port Moody, Richmond, Surrey, Cloverdale, Delta, Langley, Tri-Cities, and the Lower Mainland.