CONSENT ORDER IN DIVORCE
There are various low-conflict options that you may choose to take advantage of to try to resolve any children or financial matters between you and your former partner, including mediation, arbitration and collaborative law.
In each of the above processes, if a settlement is reached, a draft consent order will need to be prepared and sent to the Family Court. A judge has the power to accept or reject the terms of settlement that you reach between you at mediation or using the collaborative process.
If the consent order reflects the terms of an arbitrator’s award it will not be rejected unless there are exceptional reasons to do so.
To many people it seems strange that a judge can refuse to accept the terms of an agreement that you have both reached between you. If the terms of the agreement are fair the judge won’t interfere with the terms of the settlement. Sometimes the judge wants to know more about the settlement between the parties and asks questions before the terms of the draft order are approved.
On other occasions the judge will have some concerns about the way the document is drafted, and this will result in the order being re-drafted. The precedents that I will use to draft the consent order have been approved by the President of the Family Division so I can see no reason why this should happen. However, all judges have an absolute right to raise any questions that they want to.
Very rarely the judge will reject the terms of the settlement if they are deemed to be too favourable to one party. In this situation we will need to sit down and discuss the options going forward in your case.
Overall, the costs for drafting a consent order will be between £750 plus VAT and £1,400 plus VAT depending on how complicated the order is and whether the judge raises questions about the terms.
Please let me know if you would like any more information about any of the above processes so that you can decide how to progress matters forward.
FUTURE FINANCIAL CLAIMS
There have been cases where people have tried to make financial claims many years post-separation, wherein the intervening period one party has acquired significant wealth. Whilst such an application may or may not succeed, and the Court will consider what has taken place in the period since separation, the passage of time can make obtaining clear evidence about the historic value of assets difficult, and so the possibility of future claims may be a concern.
Therefore it is important therefore to understand that even if you have a documented agreement unless this is an order of the Court it may not be upheld in future financial remedy proceedings, and the Court could decide that a different outcome is appropriate. This means that post-divorce you may move forward with your life believing you are building your future for your own benefit, only to find you are met with a claim from a former spouse many years down the line. To prevent this, any agreement reached should be formalised by a consent order, which the Court can approve once the divorce has got to the decree nisi stage.
In addition, if you reach an agreement voluntarily and do not get a consent order and one party subsequently fails to uphold it, there is nothing you can do to enforce the agreement. For example, if one party agrees to pay maintenance but then stops making payments, without a Court order that person cannot be forced to pay. Likewise, failure to deal with any other aspect of an agreement cannot be enforced.