Consent Order or Separation Agreement

If you are separating and trying to sort out money, the two documents you will hear about most are a consent order and a separation agreement. They are not the same thing, and the difference matters if your ex later refuses to stick to what you agreed.

A consent order is a financial agreement that a court approves, which makes it legally binding and enforceable through the court¹. A separation agreement is a written record of what you have both agreed, but a court is not obliged to follow it. In England, Wales and Northern Ireland, even if you reach an agreement with your ex, a court still needs to approve it before it is legally binding².

The practical point is this: a divorce ends the marriage, but it does not end the financial connection between you and your ex-partner¹. Without a court-approved order, either of you can bring a financial claim later. That is why many couples treat a separation agreement as a stepping stone and a consent order as the finish line.

What a consent order is and what it does

A consent order is a document that sets out how you and your ex have agreed to divide your money and property, and it is sent to a court for approval. Once a judge approves it, the agreement becomes legally binding¹. The word "consent" means you have both agreed to the terms, so there is no argument for a judge to settle. The judge is checking that what you have proposed is fair and that it can be enforced.

A consent order can cover a wide range of things: the family home, savings, investments, pensions, and maintenance payments. It can also record that neither of you will make a financial claim against the other in future, which is often the main reason people want one.

The court does not simply rubber-stamp whatever you send. It has to be satisfied that the arrangement is reasonable, and if it is not, the papers can be returned or a hearing listed. This is why the document needs to be drafted carefully, with each asset and each payment clearly identified.

A consent order is different from a court-ordered child maintenance arrangement, which is a formal agreement based on what the court calculates the child maintenance amount should be⁴. Child maintenance and the division of assets between adults are dealt with separately, and the rules for each are different.

What a separation agreement is and what it does

A separation agreement is a written document that records what you and your ex have agreed about money and property while you are separated but not yet divorced. It is often drawn up by a solicitor, and it can cover the same ground as a consent order: who pays the mortgage, who stays in the home, how savings are split, and what happens to pensions.

The key difference is that a separation agreement is not a court order. It is evidence of what you both intended at the time, and a court will look at it, but it does not bind a court in the way a consent order does. In England, Wales and Northern Ireland, a court still needs to approve an agreement before it is legally binding².

A separation agreement can be useful for several reasons. It gives you a clear record of what was agreed, which reduces the chance of arguments later. It can be put in place quickly, without waiting for a divorce to be finalised. And it can later be turned into a consent order, so the work you do now is not wasted.

There is also a formal legal separation, which allows you to divide your finances without ending the marriage officially. You need to apply for a legal separation in writing¹. This is different again from a separation agreement, and it is worth checking which one fits your situation.

Consent order or separation agreement: how each one binds you

The difference between the two comes down to enforceability. A consent order is legally binding and enforceable through the court¹. If your ex does not do what the order says, you can go back to court and ask the court to enforce it. A separation agreement does not have that backing.

That single sentence captures the distinction. A separation agreement can be as detailed and as fair as you like, but until a court approves it in the form of a consent order, it is not legally binding in the way that matters if things go wrong.

There is a practical consequence for benefits too. Your benefits entitlement may change when you separate⁴, and the way your finances are formally arranged can affect what you are entitled to. If you are on means-tested benefits, it is worth checking how a consent order or a separation agreement would be treated.

For anyone renting, there is a further step: the landlord is told that the agreement must be put in your name only⁴. This is separate from the consent order or separation agreement, but it is part of untangling your finances properly.

A separation agreement does not end financial claims on divorce

This is the point that catches people out. A divorce only ends the marriage; it will not end the financial connection between you and your ex-partner¹. Even if you have a separation agreement that says you have both agreed to a clean break, either of you can still ask a court to make a financial order.

A financial order does not change who is liable for a debt. For credit debts, only the person who has signed the original credit agreement can be liable¹. So if a loan or credit card is in your ex's name only, a consent order cannot move that debt to you, and vice versa. The lender will still pursue the person who signed the agreement.

This is why a consent order is often described as the thing that gives you a clean break. It is the court's approval that closes off future claims, not the fact that you have written down what you agreed. If you want certainty that your ex cannot come back for more money later, a consent order is the route.

Costs: court fee and legal fees

The court fee for a consent order is £53³. That is the fee to set up the order through the formal process. It is a fixed fee, and it is paid to the court when the application is made.

Legal fees are separate and will depend on how much work is involved. If you and your ex have already agreed everything and just need the document drafted and checked, the cost will be lower than if there are disagreements to resolve. When you divorce or dissolve your civil partnership, you will have to pay court fees⁵, and those are on top of the consent order fee.

If you are on certain benefits, or your savings and income are below a certain amount, you may be able to get help with costs⁵. This is worth checking before you assume you cannot afford to formalise the arrangement.

Mediation is usually quicker and cheaper than going to court, and you may be able to get help with costs, such as legal aid⁵. If you and your ex are struggling to agree, mediation can be a way to reach an agreement without the expense of a court hearing.

The other fees in the table are for different applications, but they show the range of court fees you might encounter if your case becomes more complicated. A straightforward consent order is at the lower end.

How to get a consent order approved

The process is done on paper, and you do not have to attend court in person. You do not have to be present for the court to make a liability order⁸, and the same principle applies to a consent order: a judge can approve it without either of you being there.

The usual steps are:

1. Agree the terms with your ex, ideally with legal advice on both sides.
2. Have the consent order drafted, setting out clearly what each of you gets.
3. Send the draft order and the supporting documents to the court.
4. Pay the court fee of £53³.
5. Wait for a judge to approve the order. If the judge is not satisfied, the papers may be returned or a hearing listed.

If you are dealing with a pension, there is an extra step. For the NHS Scotland pension scheme, you need to provide a copy of the Extract Decree or Dissolution Order, supply the Pension Sharing Order including the information required by the Pensions on Divorce (Provision of Information) Regulations 2000 Section 5, and pay the administration charges for implementing the order⁹. Submitting a draft copy of the Pension Sharing Orders or Qualifying Agreement before finalising the divorce can save considerable time and costs, as the scheme administrator can review the document and ensure its terms are enforceable⁹.

If you are dealing with a tenancy or a guarantee, you may need legal advice from a solicitor to stop being a guarantor¹⁰. A tenancy agreement is a legal contract, and changing who is responsible is not something you can do by agreement alone.

Pensions, the family home and maintenance in each option

Pensions are often the largest asset after the family home, and they are treated differently depending on which route you take. A pension sharing order is where part of one person's pension is transferred to the other so that both parties have an equal share². Pension offsetting is where each party retains their own pension, but the spouse with the lower pension receives a share of other assets, such as equity in a property or a lump sum, instead².

A consent order can include a pension sharing order, which makes the transfer binding on the pension scheme. A separation agreement can record what you intend to do with pensions, but it does not bind the scheme in the same way. If you want the pension split to be enforceable, it needs to be in a consent order.

The family home is usually the other big issue. If you own the home jointly, you cannot be forced to leave without a court order¹¹. That protection applies whether you have a consent order or not, but a consent order can set out who stays in the home, who pays the mortgage, and what happens when the home is sold.

For child maintenance, the Child Maintenance Service can only accept a current court order, a formal agreement drawn up by a solicitor, or another official document such as reports from the Children and Family Court Advisory and Support Service or social services¹². Once you make a consent order, you have to wait for a year to apply to the Child Maintenance Service³. That waiting period is a significant practical difference between the two routes.

If you are buying or selling a home as part of the separation, there may be additional requirements. For the Home Owners Support Fund, you must both give your consent when applying as separated joint owners¹³. For the Older Persons Shared Ownership scheme, you must have formally accepted an offer for the sale of your current home and have written confirmation of the sale agreed, and the sale must complete on or before completion of the shared ownership purchase¹⁴.

When things go wrong and where to get help

If your ex does not follow a consent order, you can go back to court to enforce it. The court has powers to make the other person comply. In some situations, an attachment of earnings order can be made, and you and your employer can be fined if the order is not followed¹⁵. If the debtor later becomes unemployed, the order will stop, or lapse⁸.

If you are owed money and the other person is not paying, there are options available¹⁶. These include going back to court for enforcement, and in some cases asking the court to obtain information about the other person's finances. The court fee for an order to obtain information is £67⁸.

For anyone in Scotland, the rules are different in places. A Debt Relief Order is a court order only in England and Wales¹⁸, and an administration order is not used in Scotland; it is a process in court in England and Wales¹⁸. If you are separating in Scotland, it is worth checking the specific Scottish guidance on dividing money and property.

If you are dealing with a funeral or a bereavement alongside a separation, there are specific rules. A spouse or civil partner is not considered the nearest relative if there is permanent separation by separation agreement, a court order or desertion¹⁹. That can affect who is entitled to certain payments.

If you have serious problems with a new home, for example you discover a defect, the first point of contact is your solicitor²⁰. And if you are applying for benefits or need to change your details, the consent of the other person may be needed before a request can begin²¹.

For free, impartial help, MoneyHelper, Citizens Advice and the Pensions Advisory Service all offer guidance. If you are in debt, StepChange and National Debtline provide free advice. If you cannot afford legal fees, you may be able to get help with costs if you are on certain benefits or your savings and income are below a certain amount⁵.