The Difference Between A Separation Agreement And A Court Order

What’s the Difference?

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!

About Leisha Murphy

Partner/Mediator – Vancouver

After being a family lawyer for over 13 years, coupled with my own personal experience with divorce, I have come to understand the difficult transition that comes with the end of a relationship. This experience has put me in the unique position of being able to provide clients with a clear picture of what is to come and how to plan for it. As well as provide clients with guidance and education on how to deal with the day-to-day realities of a separation.