Consent Order Conundrum
|Photo by Brett Jordan on Unsplash|
I've had several cases recently where the court has refused to make a financial consent order because the judge was not satisfied that the order was fair and reasonable, despite the 'disadvantaged party' making it absolutely clear that they were happy for the order to be made.
I'm not sure that a system that works in this way is doing the parties any favours, as it seems to be either sparking dispute where there was none, or denying couples 'closure' to their divorce.
For the benefit of non-lawyers, a financigal consent order is an order setting out the terms of an agreed financial/property settlement on divorce and, usually, dismissing all other financial/property claims, thereby ensuring that the settlement is final.
Before the court makes the order it requires both parties to provide a few brief details of their financial circumstances, so that the court can ensure that the order it is being asked to make is fair and reasonable.
The problem arises when, as happens quite often, one party is perfectly happy to accept less than they might be entitled to. There could be many reasons for this that do not affect the court's decision, such as guilt at being the party responsible for the breakdown of the marriage, genuine belief that an equal division of assets would be unfair, not being interested in material things, or simply wanting the matter to be concluded.
Would it not be best if the court granted such people the order they want, provided it is satisfied that they understand what they are doing, and that there has been no duress or undue influence?
[This post was originally published on the 5th of October 2006.]