Wednesday, May 01, 2013

Family Lore Clinic: Why do you have to say to use your best endeavours within a consent order?


The term 'consent order' is usually used to refer to the court order setting out an agreeed financial/property settlement on divorce, and that is the meaning intended by the questioner.

Consent orders can contain many different types of clauses. Often, the clauses will require one of the parties to take a certain action. Normally, that action will be in the power of that party to do, such as pay a lump sum of money to the other party. Such clauses will simply state that that party must take that action.

However, sometimes a party will agree to something that is out of their control. Perhaps the most common example of this is getting the other party released from the mortgage on the former matrimonial home (where the released party is to transfer their share in the property to the first party).

Obviously, it is not within the power of one party to release the other from a mortgage - that is up to the mortgage company. Accordingly, the best that can be done is for the first party to 'use their best endeavours' to get the other party released (i.e. by applying to the mortgage company for the release and supplying the mortgage company with whatever they require).

In short, the term simply requires that party to try their best to achieve the desired outcome. Of course, if the other party does not consider that the first party is trying their best, they can refer the matter back to the court.

As usual, this is a brief summary of the subject. If you require more detailed advice, you should consult a specialist family lawyer.

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