Wednesday, June 19, 2013

Family Lore Clinic: I have received a draft consent order, what do I do?


Once again, the term 'consent order' usually refers to the court order setting out an agreed financial/property settlement on divorce or dissolution of civil partnership, and that is the meaning I will assume in this post.

The order has to be drafted by one or other of the parties - the court will not draft it for you. The draft must be agreed by both parties before it is sent to the court, so the party who drafts the order will send the draft to the other party, for approval.

Drafting a court order is not something for a lay person to do. It really must be done by a specialist family lawyer, who will know how to word it and what should be included, so that it properly reflects the agreement and is legally binding.

Accordingly, if you receive a draft order from your (former) spouse/partner's solicitor, you really need to have it checked by a solicitor on your behalf. So long as the order is not too complex, the cost of this should not be too great (the solicitor should give you an estimate in advance) and certainly could save you much more in the long run.

Having said that, there are a few things that you can do:

Firstly, check for obvious typing errors - you would be surprised how many draft orders contain such errors!

Secondly, check that all of the basic details on the order are correct: names of both parties and any children mentioned, addresses of any properties etc. Make sure that the terms 'Petitioner/Applicant' and 'Respondent' refer to the correct people.

Thirdly, check that the draft order contains the basic terms of the agreement, such as figures, who gets what etc - it should be possible to do this, even accounting for any legal jargon in the order.

Finally, make sure that nothing that was agreed as part of the financial/property settlement has been omitted from the draft order - again, it should be possible to do this despite any legal jargon.

Obviously, you should tell your solicitor about anything you think is wrong with the draft order.

After taking advice from your solicitor, you obviously need to get in touch with your (former) spouse/partner's solicitor and tell them whether you approve the draft, or whether it requires amendment.

Once the draft has been approved by both parties, a fair copy will be prepared for signature and sent to the court, together with supporting paperwork and the court fee. If the court approves the draft, it will make the consent order.

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