What is a “consent order” in Financial Proceedings?
November 2021 | Martin Fuller
Simply put a “consent order” is an order made by the court with the agreement (consent) of the parties concerned. This contrasts with the order a court makes having heard arguments from both parties as to what they believe is the appropriate order for the court to make – i.e., without the agreement/consent of the parties.
However, it is not quite as simple as the parties agreeing what they feel is a fair division of the family assets between them on divorce. The court is obliged to discharge its duties under the statutory criteria (section 25(2) Matrimonial Causes Act 1973, as amended) and to satisfy itself that the agreement/order by consent is fair to both parties in respects of the facts of the matter before the court.
In a nutshell a “consent order” is the parties suggested compromise that they have asked the court to approve, or in legal parlance “perfect”, by sealing the order which will from that point on be binding against the parties. Please note a consent order can be set aside, varied, and appealed in certain circumstances which are outside the scope of this article.
It is also worth mentioning that until the Decree Nisi has been pronounced the court has no power to approve/perfect a “consent order”.
When preparing a “consent order” to reflect the terms of an agreement between you and your spouse care must be taken to ensure the order reflects what was agreed, as the legal effect comes from the “consent order” and not the agreement itself.
There are essentially two stages to the negotiation process to achieve a “consent order” the first stage is to agree what each party is to receive. This is known as the “heads of agreement”. Once this has been achieved the heads of agreement should be written down and then signed by the parties, their solicitors and/or counsel (barrister).
The second stage is to express the “heads of agreement” in the language of the court and to ensure that the court has the power to make the order. If the court does not have the power to make an order on a particular point this can usually be dealt with by one party giving an undertaking (a promise to the court) to do or abstain from an act which is part of the agreement. An undertaking to the court is enforceable as if it was an order of the court, even if the court did not have the power to order the party to act or refrain from acting in a certain way. For example, under Section 28(1) Matrimonial Causes Act 1973 as amended provides that maintenance payments to a spouse will cease as a matter of law upon the receiving party’s remarriage. However, the court can accept and enforce an undertaking from the paying party to continue paying maintenance after the receiving party’s remarriage.
Essentially even if you have managed to agree how the family assets are to be divided between you and your spouse it is advisable to seek the assistance of a family lawyer to draft the “consent order” to ensure that it is drafted properly. Bear in mind that once the order is approved by the court you will not be able to change it except in very limited circumstances. A court is also more likely to make the consent order if satisfied that the parties have had access to legal advice,
If you reach an agreement on financial matters but do not incorporate it into a consent order, then it will not be final or enforceable. If there is no order either party can still go to court to make financial claims at any point unless they have remarried before they make the application for a financial claim. If they have remarried before they make their application they will be what is termed “statute barred” section 28(3) Matrimonial Causes Act 1973 (as amended), unable to proceed with their claim.
Once the consent order has been drafted it must be checked carefully to ensure that it accurately reflects the agreement as the legal effect of the agreement comes from the consent order, not the agreement. Once a consent order has been approved by the court a party may not back out of the order unless that party can assert a reason such as misrepresentation, mistake, material non-disclosure or a subsequent fundamental and unforeseen change of circumstances, or lack of “consent”.
Most financial matters arising out of divorce are settled by way of a consent order after negotiation as it avoids time and costs of a drawn out often acrimonious litigation process culminating in a contested hearing and often an “imposed order” that neither party wanted.
How can Fullers help?
We can help you to reach a fair agreement with your partner, and/or if an agreement has been reached, we can carry out the necessary steps on your behalf to have the order approved by the court. Contact us 01234 343 134 for a no obligations chat.
