Friday, September 07, 2012

Family Lore Clinic: Is a consent order final?


The term 'consent order' can refer to any court order made with the agreement of the parties, but in the family law context it usually refers to the order setting out the agreed financial/property settlement on divorce. This post will assume that this is what the term refers to.

The simple answer to the question is yes, a consent order is intended to be final. Whether the financial/property settlement is agreed or decided by the court, there will (or should) be a final order, which is meant to put an end to the matter.

As with any rule, however, there are exceptions. (I will not deal with the situation where one party fails to comply with the order and the other party has to go back to court to enforce it, as that does not alter the terms of the order.)

Firstly, the order may include provision for maintenance, which can be varied (or even capitalised) by the court at a later date, upon the application of either party.

Secondly, and this may be the point that the poser of the question was getting at, a consent order can be set aside if for some reason it was or has become unfair. Examples of this are:

  • Where one party has failed to disclose material facts, such as a significant asset which was not therefore taken into account when the settlement was reached; or
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  • Where one party has used 'undue influence' to persuade the other party to agree to an unfavourable settlement; or
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  • Where the parties were influenced by mistake, for example as to the value of a matrimonial asset; or
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  • Where, shortly after the order was made, there has been a new event which invalidates the basis upon which the order was made, such as the death or unexpected remarriage of one of the parties.

In any event, my original point should be remembered: a consent order is intended to be final. The court will not therefore alter it or set it aside unless there is a good reason to do so.

(Note that this is necessarily a simplification of the law. If you require more details or specific advice, you should consult a specialist family lawyer.)

15 comments:

  1. John,

    I don’t know if I’m going down a side alley here but could you explain how undertakings recorded in the recital of a consent order can be enforced where the court would not have had jurisdiction to order the provision in the first instance, e.g. payments to a third party or an undertaking to release the other spouse from liability to the mortgagor if the property has been transferred?
    Does an undertaking count as a lawful order of the court for the purposes of contempt proceedings if it isn’t honoured?
    Apologies if I’ve just given you a migraine….

    ReplyDelete
    Replies
    1. Yes, failure to comply is dealt with as contempt - see Practice Direction 33A.

      (Incidentally, the transferee spouse cannot give an undertaking to obtain the other's release from a mortgage, as this is not within their power - they can only undertake to 'use their best endeavours' to obtain the other's release.)

      Delete
  2. Thanks, John. Should have worded the question better!

    ReplyDelete
  3. My parents entered in to a consent order during their divorce which gave provisions for my father to pay £1000 to myself and my brother when he left his employment. My mother passed away last year and i was provided with her copy of the consent order, this payment was not received and he has left his employment. Can i enforce this as my mother is no longer able to do so?

    ReplyDelete
    Replies
    1. Sorry, but I can't give advice. You can find a specialist family lawyer here.

      Delete
  4. Thanks for the link to PD 33A . But can a recital that is not an undertaking be enforced? eg one of the parties agrees to do something that is outside of the court's jurisdiction to order, but which forms a necessary part of the overall settlement that was approved?

    ReplyDelete
    Replies
    1. If the order has been properly drafted the situation shouldn't arise, as such a term should be specified as an undertaking.

      As I indicated in the post, if you require specific advice upon a specific term in an order, you should consult a specialist family lawyer.

      Delete
  5. Dear John,

    I have a consent order with my ex-husband that he is not abiding by. If states that he should be increasing maintainance payments yearly in relation to the retail price index. He has not increased payments for 4 years. Is the cost of enforcement (solicitor bills/court costs) going to outweigh his repayment? can i ask him to pay costs or should I try and take this to court myself? How would I do that? I'm a bit scared of doing something wrong and my ex-husband taking advantage of me.

    thanks, Jo.

    ReplyDelete
    Replies
    1. I'm afraid that I can't give specific advice. You really should see a solicitor for some advice - you should be able to get an initial interview for a fixed fee, or even free.

      Delete
  6. My ex husband has not complied with consent order by the transfer of the marital home. I consented to sign over the property to him for a lump sum. He should have done this within 56 days. Can I apply to Court for interest?

    Pat

    ReplyDelete
  7. I have a consent order from April 2012 its a 60 - 40 split in favour of my ex wife we have had a firm offer on the property and now after telling the court in writing that she could secure a mortgage she finds that she cannot get on and now wants to take it beck to court. She has had over a year to enquire and secure a mortgage. Can she take this back to court ?

    ReplyDelete
    Replies
    1. She could try to get the court to re-open the order, although whether she would succeed is another question, that I could not possibly answer here.

      Delete
  8. I'm drafting a consent order. Husband is going to keep property. the mortgage is in his sole name. Do I need to add the wording endeavour to procure the release of the mortgage in consent order when mortgage in his name only.

    ReplyDelete
    Replies
    1. If the mortgage is in the husband's sole name, then the wife does not need to be released.

      Delete

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