Financial Consent Order
Consent order in divorce
There are various options that you may choose to begin with to try to resolve any children or financial matters between you and your former partner, including negotiations between yourselves, discussions between solicitors and mediation. (Arbitration and collaborative law can be very expensive and if you have got to mediation and that has failed then usually the best option would be to proceed to make an application to The Family Court to decide the financial arrangements that need to be made.
In each of the above options if a settlement is reached, then a Finacial order will still need to be prepared and an application for a Financial consent order has to be made to The Family Court. A judge has the power to accept or query the terms of Financial consent order and settlement that you reach whether at mediation or using the collaborative process etc.
Although the 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 usually 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 Financial consent 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 having to be amended. Some of the precedents that I use to draft a Financial consent order have been approved by the President of the Family Division so I can see no reason why this should happen. However, a judge has the right to raise questions if they want to.
Very rarely a judge will reject the terms of the settlement if they are or seem to be too favourable to one party. In this situation we would need to discuss the options. And sometimes it would be necessary to renegotiate the settlement.
Please let me know if you would like any more information about any of the above so that you can decide how to take matters forward.
Future financial claims
There have been cases where people have tried to make financial claims many years post-separation, where in 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 a financial order of the Court it may not be upheld in future financial remedy proceedings, and the Family 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 first divorce conditional order (formerly known as decree nisi) stage.
In addition, if you reach an agreement voluntarily and do not get a financial consent order and one party subsequently fails to uphold it, it may be difficult 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.