The Supreme Court’s decision in Wyatt v Vince should serve as a reminder to divorcing couples that financial settlements should be finalised at the time of the divorce.
Most clients, sensibly seek to resolve the financial aspect of the divorce through mediation or by negotiations, keeping court involvement and legal costs to a minimum. The Family Law Protocol encourages settlements, agreements and a conciliatory approach to what can be, a highly sensitive subject. Family law directly encourages settlement by allowing for the making of Consent Orders. The vast majority of financial disputes on marital breakdown are settled by way of a Consent Order.
What is a Consent Order on divorce?
A Consent Order arises where both parties to the marriage agree comprehensively and conclusively the specific terms of a financial order. The Consent Order records those terms that have been agreed between the parties. The Consent Order is then sent to the court for approval by a Judge who has an independent duty to ensure that the intended Consent Order is fair and just in the circumstances.
What can be included in the Consent Order?
All terms of the agreement should be included. These may include:
- sale or transfer of the family home and any other properties
- lump sum payments
- pension sharing orders
- life policies
- bank accounts
- spousal maintenance
- division of contents of the family home
- any specific agreement in relation to liabilities
- who should be responsible for the outgoings of the family home pending a sale
It is important to note that the court generally does not have jurisdiction to make an order for child maintenance as this is principally dealt with by the Child Maintenance Service. That being said, in limited circumstances, the court does have jurisdiction to make an order and one of these exceptions to the general rule includes child maintenance that has been agreed and is contained within a Consent Order. Beware, however, as in some circumstances, Consent Orders can be overruled by a CMS assessment. If your Consent Order was not drafted by a legal professional and/or you simply require reassurance that this does not apply to you, please contact us.
Is a solicitor needed to draft a Consent Order?
It is essential that a Consent Order is drafted correctly to ensure that it fully protects both parties, that it includes provision for all assets and liabilities and that your claims against each other are properly dismissed so as to prevent any future risk of a claim for financial provision.
A properly drafted Consent Order will also ensure that there is no scope for further disagreement in years to come.
In my experience, Consent Orders drafted by those who do not have the requisite specialist knowledge and expertise are often poorly drafted and are full of ambiguities. Unfortunately this can have a detrimental effect at any time after the Order has been sealed. I have seen many unfortunate cases in which individuals have incurred significant time and legal costs addressing issues that were agreed at the time of the divorce.
Will I need to go to Court?
Attendance at court is not usually required unless the Judge who is asked to approve the Consent Order requests the parties’ attendance. This would only be if the Judge has questions or concerns about the Order which cannot be dealt with in correspondence.
To avoid such attendance, it is imperative that sufficient financial information is provided to the court in order for a Judge to determine whether the Consent Order is fair and just in the circumstances. It may also be prudent to provide the Court with a brief explanation as to the agreement particularly where on the face of it the agreement may not seem fair. A solicitor can assist you with this to minimise the possibility of a hearing being convened.
What if my husband/wife won’t agree to a Consent Order?
In some cases, it is simply not viable to agree terms of settlement. In that instance, it may be necessary to make an application to the court for financial relief. In reality, however, most claims of this nature are settled before a final hearing by way of a Consent Order.
If you would like to find out more about our services and how we might be able to assist you in resolving your family law related issues, please contact me, Gemma Antoniou.
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