The Difference Between A Separation Agreement And A Court Order

April 21, 2016
Leisha Murphy

What’s the Difference?

A Separation Agreement is:

• a written contract between separating spouses; and

• negotiated by the spouses with or without the help of lawyers. 

The terms of a Separation Agreement reflect what the spouses agree to and often will contain more details about the circumstances of the spouses than you would find in a Court Order.

A Court Order is:

• ordered by a judge;

• not usually negotiated by the spouses, unless it is a Consent Order as described below. 

A Consent Order is a Court Order that contains terms the spouses have agreed to or “consented” to. A Consent Order must be brought before a judge prior to the conclusion of a trial. The judge reviews the terms of the Consent Order. If the judge finds that the terms of the Consent Order are reasonable, the judge will usually approve the Consent Order and make it a binding Court Order.

You can also file a Separation Agreement with the Court to turn it into a Court Order.

How Are They Enforced?

To enforce a Separation Agreement that is not filed with the Court, you must rely on contract principles. This means that if one spouse does not fulfill its obligations under the Agreement, the other spouse will have to sue the first spouse, e.g. for breaching their contract.

A Court Order or Separation Agreement filed with the Court can be enforced right away so that the terms of the Order are followed by both spouses. A spouse who does not follow the terms of a Court Order can be found by the court to be in contempt of the Order. If you are found to be in contempt of a Court Order, you may face a fine or arrest.

Take Away Summary:

1) A Separation Agreement is a private contract between spouses and often provides more detailed terms, such as the age and occupation of the spouses.

2) A Court Order is made by a judge and has harsher enforcement mechanisms, such as a fine or imprisonment, if an individual does not follow the terms of the Order.

Have questions about separation agreements, court orders, or any other family law issue? Contact us!

Leisha Murphy
Leisha Murphy
Partner (Vancouver)
Connect Family Law

Leisha has practised exclusively in the area of family law since being called to the British Columbia Bar in 2010. Before opening Connect Family Law in 2015, she practiced in the family law group of a leading British Columbia law firm.