If you are separating from a partner and need to make a legally binding agreement on financial matters or arrangements for children, the court will usually require you to pursue family mediation. With the right approach, family mediation offers a constructive path forward and helps a separating couple to make important decisions without the stress and cost of going to court.

On the other hand, mediation meetings are not the best approach for every scenario, and the relative informality about the process can leave participants confused about whether the agreement they have reached is legally binding, or what they would need to do to enforce it through the court.

The short answer is that an agreement reached during family mediation is not legally enforceable on its own. However, it’s a vital first step towards resolving disputes during a divorce or the dissolution of a civil partnership. With the right legal support, you can turn your mediated agreement into a legally binding court order that provides security and certainty for the future.

Here, the expert family solicitors at Switalskis explain how mediation works in the context of a divorce, the legal process involved in ensuring that any agreements reached can be legally enforced, and how a solicitor can support you with all aspects of the process.

What is a family mediation agreement?

In mediation sessions, a trained and impartial family mediator is appointed to help you and your ex-partner to discuss and resolve issues related to your divorce. The family mediator should be approved by the Family Mediation Council as someone who can fulfil their role without taking sides or giving legal advice. Their role is to remain neutral and facilitate a productive conversation so you can reach an agreement that works for your family.

A range of disputes may be resolved in this way and, when you reach an agreement, the mediator will formalise this in one of the following types of document:

• For financial matters, the mediator will draw up a Memorandum of Understanding. It details the financial agreement you’ve reached regarding assets, property, pensions and debts.
• For arrangements about children, the mediator helps the parties to create a document called "Our Child's Plan", which outlines decisions on where the children will live, how much time they’ll spend with each parent, arrangements for school holidays and other child-related matters.

While these documents are a crucial record of your intentions, they are not legally binding. This means that if you rely on such a document but your ex-partner changes their mind and stops following the agreement later, you cannot enforce it through the court in this form.

Even if you believe that you will need the court process to successfully implement child arrangements or resolve financial issues, the process of mediation can improve communication and narrow down the issues in dispute. There is little risk involved, as the memorandum of understanding and parenting plans are written on a "without prejudice" basis, which means that the discussions can't be used against you if you fail to reach a final agreement and need to move to court proceedings.

How to make an agreement legally binding

To give your agreement legal enforceability, it needs to be converted into a formal court order. This is a straightforward process that the family law solicitors at Switalskis can manage for you. The type of order you need depends on what your agreement covers.

Financial and property agreements

To make a financial agreement legally binding, you need to apply to the court for a consent order. Your solicitor will use the Memorandum of Understanding from your mediation sessions to draft the consent order and submit it to a judge for approval.

The judge will review the agreement to verify that it’s fair to both you and your partner. They will consider all the circumstances, including the needs of any children, and check that both parties have been open about their finances to determine whether the agreement is fair and legal. If the judge approves the consent order, it becomes a legally binding document.

Having a consent order granted finalises your financial arrangements and provides a "clean break," which means that it prevents your ex-partner from making future financial claims against you. You can only apply for a consent order if you are getting a divorce or dissolving a civil partnership and have reached the conditional order stage. It is important to do so before you apply for a final order, as some of your claims may be affected if you obtain a final order before your financial agreement is finalised.

Parenting and child arrangements

If your agreement is about your children, your solicitor can ask the court to turn your parenting plan into a Child Arrangements Order. This formalises your co-parenting arrangements and makes them legally enforceable. While many parents successfully co-parent using an informal parenting plan, having a Child Arrangements Order provides a legal backstop.

If one parent breaks the terms of the agreement, you can ask the court to enforce the child arrangements order, but not an informal plan. However, it's important to note that the court will only make the order if it believes an order is necessary and the arrangements are in the best interests of the children. The court will not necessarily make an order reflecting the terms of a parenting plan even if the parents agree with the proposed terms.

Do I need a legally binding mediation agreement?

Whether or not you need to apply to the court to make an informal agreement legally binding depends on the risk of either party breaking the terms of the document, but it is often best. Most parents find comfort in knowing that their rights are legally protected, and that they can rely on, for example, any child maintenance payments or other financial provision.

If an agreement is not legally binding, there are no direct legal consequences for breaking it. The person affected can't take the other party to court to force them to comply. In the most serious cases, the parties may have to return then start a court application dealing with matters from scratch.

On the other hand, if the agreement has been made into a consent order or a child arrangements order, breaking it is a serious matter. The other parent can apply to the family court to enforce the order, and the court can then impose penalties or make further decisions to force compliance.

Do you legally have to attend mediation?

Mediation is a voluntary process and you can't be forced to participate in the process. However, before you can apply to the family court for an order about children or finances, and unless you satisfy one of the exemption criteria, you must attend a Mediation Information and Assessment Meeting (MIAM) to determine whether it would be a suitable approach in your case.

At this first meeting, a trained mediator will explain what mediation is, assess if it's suitable for your situation. If the MIAM concludes with you, your ex-partner or the mediator deciding that mediation isn’t appropriate in your circumstances, the mediator can sign a form that allows you to apply to court.

While there is no legal obligation to attend more mediation sessions after the MIAM, and you can technically move directly to court proceedings, there may be benefits to trying the process, including in terms of cost, privacy, efficiency and control over the outcome. Refusing to engage or try to reach an agreement without a good reason can have consequences. If your case ends up in court, a judge may look unfavourably on your refusal, which can impact decisions about who pays the legal costs of the court proceedings.

Mediation is also a more cost-effective approach, as the government currently offers a Family Mediation Voucher Scheme to go towards costs, and some couples qualify for legal aid to pay for some or all of the mediation process.

On the other hand, there are some exemptions that mean you can proceed through the court process without ever attending a Mediation Information and Assessment Meeting. For example, in cases involving domestic abuse or if your application is urgent for an accepted reason, a solicitor can help you to apply to the court for an exemption.

You are also entitled to seek legal advice alongside the mediation process. The family law solicitors at Switalskis are experienced in advising clients alongside the mediation process so you can get the most out of your sessions.

Find out how Switalskis can help

Family mediation gives you more control over your divorce and helps to maintain relationships, which can be vital when you need to continue co-parenting. While the initial mediated agreement isn't legally binding, it lays the foundation for a secure and enforceable settlement, and making the agreement binding is one of the more straightforward aspects of the process.

The expert divorce lawyers at Switalskis can provide the advice you need before, during and after mediation to protect your rights, reach a suitable agreement and enshrine it in law. With our help to formalise your agreement into a legally binding court order, you can enjoy the clarity you need to move forward and the peace of mind that the court can protect your rights where necessary.

Contact our team today for clear, empathetic advice on the mediation process and converting the results into legally binding agreements. Call Switalskis on 0800 138 0458 or use our online enquiry form to request a call back.