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Consent Orders: Why do we need them?
Consent Orders are essential in order to make any financial agreement reached on divorce legally binding and enforceable.
One of the most common misconceptions is that once a couple have divorced, their financial assets are automatically legally separated as well. This is not correct. Unless the division of matrimonial assets has been finalised in a Consent Order approved by the court, either party to the relationship can claim an interest in the other’s assets at any point in the future.
The only time this may not be the case is where the parties are already divorced and one party remarries before making a financial application to the court. This is known as the remarriage trap. This is a complex subject but, in very brief terms, if a party wishing to make a claim does not take appropriate steps before remarrying, that party will lose his/her right to claim against the former spouse’s assets.
So, if a financial agreement has been reached, that agreement should be set out in a written document known as a Consent Order, which must be sent to the court for approval. Only once the court approves the Consent Order does the agreement become legally binding and enforceable.
The court cannot approve a Consent Order unless there are divorce proceedings which have reached the Decree Nisi stage. It is not a rubber stamping exercise. The court also has to be provided with a summary of the relevant financial details in a prescribed format, i.e. a Statement of Information. This not only provides the court with a snap shot of both parties’ financial circumstances but also confirms whether either is intending to remarry or cohabit or is already doing either of those things.
Once the Consent Order has been approved by the court, and the Decree Nisi has been made Absolute, the financial arrangements become binding. The order is designed to be final. For this reason, it is very difficult to challenge a final order once it has been made by the court. For example, a party would need to prove that the other party has not made full and honest disclosure of his/her circumstances or demonstrate that something so significant has happened that undermines the entire basis on which the order was made. The exception to this is that maintenance payments by one party to another can always be reviewed and altered if there are material changes in circumstances. For example, if the party receiving maintenance lives with a new partner, then this might justify a reduction or complete suspension of payments.
Because Consent Orders are such binding documents and so difficult to alter, it is crucial that each party receives proper advice before agreeing terms of settlement, and then the document is professionally drafted to ensure all the necessary terms are included in appropriate terms.
If you need advice or assistance regarding any Family law matter, then please contact Nina Roby.
Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.