A memorandum of understanding (MoU) is the document in which a family mediator in England and Wales records the proposals that two people have reached in mediation about their finances, property or children on separation or divorce. A memorandum of understanding sets out what has been agreed in principle, the reasoning behind it, any matters left unresolved and the steps the participants intend to take next.[1][2] In financial cases it is accompanied by a separate open financial statement recording the disclosure on which the proposals are based.[1]
An MoU is not legally binding. A memorandum of understanding is written on a without prejudice basis, in accordance with the Family Mediation Council’s Code of Practice, which requires that “all discussions and negotiations in the Mediation must be conducted without prejudice to legal proceedings”.[3] The Family Mediation Council explains that “the decisions you reach aren’t legally binding on their own. But you can ask a court to make what you’ve decided into a legally binding consent order”.[2] A solicitor normally converts the MoU into a draft consent order, filed with Form D81 and, in July 2026, a court fee of £62, which a judge approves if satisfied that the terms are fair.[4][5][6]
Definition and purpose
The term is not defined in legislation or in the Family Procedure Rules. It is the profession’s name for the outcome document of a family mediation, and it appears throughout the Family Mediation Council’s Standards Framework: foundation training must include “drafting of a memorandum of understanding”, a mediator working towards accreditation must have “any mediation outcome documentation, including memoranda of understanding and open financial statements, approved by their PPCs before being sent to their clients”, and an accreditation portfolio must include cases with “memoranda of understanding and open financial statements”.[1] Some services call the document a mediation summary, a summary of proposals or, where it is issued part-way through the process, an interim confidential summary of proposals.[1]
Its purpose is threefold. It gives the participants a single agreed account of what they have proposed, so that each can take it to a solicitor for independent advice. It provides the drafting instructions from which a consent order or separation agreement can be prepared. And it records the rationale, so that if the proposals are later questioned, whether by an adviser or by a court asked to approve them, the reasons for them are available.[1][7] The FMC’s competence standards require the mediator to ensure that “all mediated outcomes follow a clear rationale, are reality-tested, and are approved by both participants”, and to set out “any matters that have not been resolved”.[1]
The MoU is prepared by the mediator, not by the participants or their lawyers, though lawyers may attend mediation with the participants’ agreement and may comment on a draft.[3] The mediator gives legal information but does not give legal advice, and the Code requires the mediator to “advise the Participants that it is in their own interests to seek independent legal advice before reaching any final agreement”.[3][7]
Legal status: without prejudice and not binding
An MoU has two connected legal characteristics. First, it is without prejudice: it records negotiations conducted in a process that the participants agreed at the outset could not be referred to in legal proceedings. Paragraph 6.5.1 of the FMC Code of Practice requires that “before the Mediation commences, the Participants must agree in writing that discussions and negotiations in Mediation are not to be referred to in any legal proceedings, and that the Mediator cannot be required to give evidence or produce any notes or records made in the course of the Mediation”, unless both waive that protection or the law requires disclosure.[3] Second, it is not binding: it is expressly a record of proposals, not a contract, and neither participant can sue on it. The MoU in Neil v Neil, for example, stated that “it does not record or create a legally binding agreement between them”.[8]
The without prejudice status protects the mediation process. It means that a participant who makes a concession in mediation, or agrees a figure that a court might not have ordered, cannot have that concession used against them if the mediation fails and the case goes to court. It is the same protection that applies to without prejudice correspondence between solicitors. The protection has limits: paragraph 6.5.4 of the Code provides that it “will not apply in relation to communications indicating that a child or other person is suffering or likely to suffer significant harm, or where other public policy considerations prevail”, and the mediator must report suspected money laundering.[3] The wider principles are covered on confidentiality in mediation.
The privilege belongs to the participants jointly and can be waived by them. In practice it is waived, in part, every time an MoU is sent to a solicitor with instructions to prepare a consent order, because the solicitor then writes openly to the other side stating that terms have been agreed. The consequences of that are discussed under treatment by the courts. The distinction between the privileged MoU and the open financial statement is deliberate: paragraph 6.5.2 of the Code requires that “all factual information material to financial issue must be provided on an open basis, so that it can be referred to in legal proceedings”, so that the facts are open while the negotiations remain protected.[3]
Contents
There is no prescribed form. The FMC competence standard for outcome documents requires “appropriate language and drafting formats”, “congruence between ‘without prejudice’ mediation summaries and open financial statements”, and that any financial settlement proposed is “capable of legal implementation and accord[s] with current legislation”.[1] A typical financial MoU therefore contains the following.
| Section | Typical content |
|---|---|
| Heading and status | The names of the participants and mediator, the dates of the sessions, and a statement that the document is without prejudice, legally privileged and not binding, and that each participant is advised to take independent legal advice before acting on it[3][8] |
| Background | The length of the marriage or relationship, the children and their ages, the housing and employment position of each participant, and the reason the participants came to mediation |
| Issues brought to mediation | The questions the participants asked the mediator to help them resolve, for example the family home, pensions, maintenance, debts and arrangements for the children[3] |
| Financial summary | A short cross-reference to the open financial statement, which carries the detailed figures; the MoU does not repeat the disclosure[1] |
| Proposals | Each proposal in turn: sale or transfer of the home and division of the proceeds; treatment of pensions, including any proposed pension sharing percentage; lump sums; spousal maintenance or a clean break; child maintenance, by reference to the statutory formula or an agreed figure; division of savings, investments, debts and contents |
| Rationale | Why the participants consider the proposals fair, by reference to their needs, the children’s needs, contributions and the length of the relationship, and how the proposals were reality-tested[1] |
| Matters not resolved | Any issue left open, and how the participants intend to deal with it[1] |
| Next steps | That each participant will take the document to a solicitor; whether a consent order or separation agreement is intended; who will prepare the draft; timing in relation to the divorce[7] |
The mediator does not verify the information on which the proposals rest. The Code requires the mediator to make clear “that he or she does not make further enquiries to verify the information provided by any Participant; that each Participant may seek independent legal advice as to the adequacy of the information disclosed before reaching a decision”.[3] The MoU therefore records proposals made on the basis of the disclosure given, and a solicitor advising on it will normally check that disclosure against the open financial statement and its supporting documents.
Children-only cases: the outcome statement and parenting plan
Where mediation concerns only arrangements for children, the outcome is often recorded as an outcome statement or a parenting plan rather than a formal MoU; the Standards Framework refers to a “memorandum or outcome statement” for children-only cases and to parenting plans among the documents a portfolio may include.[1] Such a document sets out where the children will live, the time they will spend with each parent, holidays, schooling, communication and how future disagreements will be handled. Like a financial MoU it is not binding, and most parents do not seek a court order to give it effect, because section 1(5) of the Children Act 1989 provides that a court “shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all”.[9] Where the parents want an enforceable order, the outcome statement can be the basis of a consent application for a child arrangements order. See child arrangements mediation.
How it differs from a separation agreement and a consent order
An MoU, a separation agreement and a consent order are three stages of formality. The MoU is a privileged record of proposals prepared by a mediator and binding on no one. A separation agreement is an open contract, drafted by a solicitor and signed by both people, which is enforceable as a contract but which cannot oust the court’s jurisdiction to make a different financial order on divorce.[10] A consent order is an order of the Family Court, made on the parties’ agreed terms under section 33A of the Matrimonial Causes Act 1973, which is enforceable as a court order and which, with a clean break, ends future financial claims.[6][4]
| Feature | Memorandum of understanding | Separation agreement | Consent order |
|---|---|---|---|
| Prepared by | Mediator | Solicitor (or the parties) | Solicitor or drafting service; approved by a judge |
| Legal status | Without prejudice; not binding[3] | Open; a contract | A court order[6] |
| Can be shown to the court | No, unless privilege is waived[3] | Yes | It is the court’s document |
| Enforceable | No | As a contract, subject to the court’s overriding discretion on divorce[10] | Yes, as a court order |
| Ends future financial claims | No | No; the court retains jurisdiction[10] | Yes, where it contains a clean break |
| Requires divorce proceedings | No | No; often used by couples not yet divorcing or not married | Yes; made within divorce or dissolution proceedings, usually after the conditional order[4] |
| Court fee | None | None | £62 (fee 5.1, EX50, July 2026)[5] |
For unmarried couples there is no financial remedy jurisdiction on separation and no consent order in the matrimonial sense; the MoU is normally implemented by a separation agreement, a declaration of trust or a transfer of property, and arrangements for children by a parenting plan. See separating unmarried couples.
Making the terms binding
GOV.UK states: “If you and your ex-partner agree on how to divide money and property, you need to apply for a consent order to make it legally binding.”[11] The steps are as follows. Each participant takes the MoU and open financial statement to a solicitor for advice, as the mediator will have recommended.[3][7] One solicitor, or a drafting service, prepares a draft consent order reflecting the MoU; the other reviews it. Both sign the draft. The application is made on Form A (by consent), with the draft order in duplicate and a statement of information on Form D81, which sets out each party’s current capital, pensions and net income and the position after the order is implemented, and asks “how was the proposed consent order, attached to this form, reached?”, with mediation among the listed answers.[4][12][13][14] Rule 9.26 requires the D81 to be signed by both parties to confirm that each has read the other’s information.[12] The court fee is £62.[5][4]
The court considers the application on paper. Section 33A provides that the court “may, unless it has reason to think that there are other circumstances into which it ought to inquire, make an order in the terms agreed on the basis only of the prescribed information furnished with the application”, the prescribed information being the D81.[6][12] GOV.UK explains that “a judge will approve your consent order to make it legally binding if they think it’s fair. If they do not think it’s fair, they can ask you to change it”.[4] GOV.UK advises that it is usually simpler to ask for approval after the conditional order in the divorce.[4] The full procedure, including Form D81 and the court’s approach, is on Divorce Law Wiki, and a step-by-step account of the routes from agreement to order is published by ConsentOrder.org.uk, an information site operated by Family Legal Ltd, the publisher of this wiki.[15]
Where one participant is eligible for legal aid, the Legal Aid Agency funds “legal help in support for mediation”, which covers a solicitor’s advice on the MoU and the drafting of the consent order.[16] Legal aid for mediation is means-tested only; see legal aid for family mediation.
Treatment by the courts
Three principles govern how a court treats an MoU. First, the court is not bound by any agreement between spouses: as the Supreme Court restated in Radmacher v Granatino [2010] UKSC 42, a spouse “cannot by her own covenant preclude herself from invoking the jurisdiction of the court or preclude the court from the exercise of that jurisdiction”.[10] Second, a consent order “derives its authority from the court and not from the consent of the parties”, so the court exercises its own judgment on fairness when asked to approve terms from an MoU.[17] Third, the MoU itself is privileged and is not put before the court; what the court sees is the draft order and the D81.[3][12]
The court will nevertheless give weight to an agreement freely reached with full information. Radmacher holds that the court “should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”, and that “what is important is that each party should have all the information that is material to his or her decision”.[10] Proposals reached in mediation, with open disclosure and independent legal advice, sit comfortably within that approach, which is one reason the D81 asks how the proposed order was reached and lists out-of-court dispute resolution such as mediation among the answers.[14]
Neil v Neil [2019] EWHC 3330 (Fam) shows how the privilege can be lost. The parties had mediated in 2014 and signed an MoU headed “without prejudice” which stated that it did not create a binding agreement. The wife’s solicitors then wrote openly to the husband stating that they had “drafted a consent order reflecting the terms of this agreement”. Mr Justice Moor held that the privilege attaching to the MoU had been waived by that open acknowledgement that agreement had been reached, and the MoU became admissible in later proceedings to set aside the order, which had been altered without the husband’s knowledge.[8] The case also illustrates the duty of full and frank disclosure that continues up to the making of a consent order: in Sharland the Supreme Court confirmed, following Livesey v Jenkins, that each party “owes a duty to the court to make full and frank disclosure of all material facts”.[17]
The court’s wider powers to encourage mediation, and the costs consequences under FPR Part 3 of an unreasonable refusal to engage, are covered on mediation and the Family Court.
Cost
Drafting the MoU and open financial statement is part of the mediation and is usually charged at the mediator’s hourly rate; the FMC states that people paying privately can expect to pay £130 to £170 per person per hour “for mediation sessions and for documentation to be drafted”.[16] Some services charge a fixed fee for the documents. The FMC’s 2025 survey found that 44 per cent of successful children cases cost each person between £500 and £1,000 in total, and 36 per cent of financial cases fell in the same band.[18] Where a participant is eligible for legal aid the documents are covered by the Legal Aid Agency, as is the follow-on advice and consent order drafting under “legal help in support for mediation”.[16] The cost of converting the MoU into a consent order is separate: the court fee is £62, and drafting is charged by the solicitor or service used.[5] See mediation costs.
History
The practice of recording mediated proposals in a privileged summary, with a separate open statement of finances, predates the Family Mediation Council and is now codified in its single Code of Practice, whose paragraph 6.5 sets the without prejudice basis of negotiations alongside the open basis of financial information.[3] The structure reflects the law on without prejudice negotiations and the courts’ long-standing insistence that financial disclosure be open. The FMC’s Standards Framework has required the MoU and open financial statement as portfolio evidence since the single accreditation began in January 2015, and its competence standards name “congruence between ‘without prejudice’ mediation summaries and open financial statements” as a required skill.[1] The broader development of the profession is on history of family mediation.
Criticism and debate
The main practical criticism of the MoU is the gap between it and a binding order. A proportion of couples who reach proposals in mediation never convert them into a consent order, whether because of cost, delay or a change of mind, and are left with no enforceable settlement and, for married couples, with financial claims still open. The FMC’s advice that participants take legal advice, and the availability of legal aid for the conversion step where one party qualifies, are the sector’s responses.[7][16] A second debate concerns terminology: the words “memorandum of understanding” carry a formality that can mislead participants into treating the document as an agreement, and some mediators prefer “summary of proposals” for that reason.[1] A third concerns privilege itself: the rule protects candid negotiation, but, as Neil v Neil shows, it can be waived inadvertently once solicitors correspond openly on the strength of the MoU.[8]
See also
- Open financial statement – the companion open document
- Confidentiality in mediation – the without prejudice rule
- Financial mediation – the process that produces an MoU
- Child arrangements mediation – outcome statements and parenting plans
- Mediation and the Family Court
- Mediation costs
- Consent order – how the MoU becomes binding
- Form D81
- Separation agreement – the contractual alternative
References
- FMC Manual of Professional Standards and Self-Regulatory Framework, v1.6. Family Mediation Council. August 2025. Accessed 5 September 2026.
- Mediation sessions. Family Mediation Council. Accessed 5 September 2026.
- FMC Code of Practice for Family Mediators, v1.5. Family Mediation Council. August 2025. Accessed 5 September 2026.
- Money and property when you divorce or separate: apply for a consent order. GOV.UK. updated 11 February 2025. Accessed 5 September 2026.
- Family court fees (EX50). HM Courts and Tribunals Service. updated 13 July 2026. Accessed 5 September 2026.
- Matrimonial Causes Act 1973, section 33A: Consent orders for financial provision or property adjustment. legislation.gov.uk. Accessed 5 September 2026.
- When you need legal advice. Family Mediation Council. Accessed 5 September 2026.
- Neil v Neil [2019] EWHC 3330 (Fam). Find Case Law, The National Archives. 22 November 2019. Accessed 5 September 2026.
- Children Act 1989, section 1: Welfare of the child. legislation.gov.uk. Accessed 5 September 2026.
- Radmacher (formerly Granatino) v Granatino [2010] UKSC 42. Find Case Law, The National Archives. 20 October 2010. Accessed 5 September 2026.
- Money and property when you divorce or separate: getting a financial agreement. GOV.UK. updated 11 February 2025. Accessed 5 September 2026.
- Family Procedure Rules 2010, Part 9: Applications for a financial remedy (rules 9.14 and 9.26). Ministry of Justice. Accessed 5 September 2026.
- Provide information about the parties’ financial situation to support your application for a consent order: Form D81. HM Courts and Tribunals Service. updated 16 July 2026. Accessed 5 September 2026.
- Statement of information for a consent order in relation to a financial remedy: Form D81 (version 04.25). HM Courts and Tribunals Service. April 2025. Accessed 5 September 2026.
- How to agree a consent order. ConsentOrder.org.uk (Family Legal Ltd). Accessed 5 September 2026.
- What does mediation cost?. Family Mediation Council. Accessed 5 September 2026.
- Sharland v Sharland [2015] UKSC 60. Find Case Law, The National Archives. 14 October 2015. Accessed 5 September 2026.
- The State of Family Mediation 2025. Family Mediation Council. September 2025. Accessed 5 September 2026.
External links
- FMC Code of Practice, v1.5 (PDF) – paragraph 6.5 on without prejudice and open information
- GOV.UK: money and property when you divorce or separate
- Form D81 on GOV.UK
- Family Procedure Rules Part 9 (justice.gov.uk) – rule 9.26, consent orders
- Neil v Neil [2019] EWHC 3330 (Fam) – Find Case Law
This article is part of Family Mediation Wiki, published by Family Legal Ltd. It is general information about the law of England and Wales, not legal advice. Last reviewed 6 September 2026. About this site and editorial policy · Report an error.