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Can a judge reject a consent order?

Reasons to choose Wilson Browne

The divorce process can be a stressful and emotional time for any family.

Not only do you have to come to terms with the breakdown of your relationship and what the future looks like ahead, you also have to address the practical matters arising from your separation. One of the most contentious issues in divorce is often the dividing of the matrimonial assets, effectively a determination of ‘who’s going to get what’, and if you’re dividing things up, how much is the other entitled to?

As is the case with many legal matters, reaching an agreement quickly and amicably between you both can reduce time, legal costs and stress. This isn’t always feasible, and there may be times when Court intervention is required to help you reach a resolution.

However, even where an agreement is reached amicably and without Court involvement, the Court will not simply act as a ‘rubber stamp’ when considering the financial agreement reached between you both. The Court retains a discretion when deciding whether to approve the agreement placed before it and, for that reason, the Court has the power to raise questions and decline the agreement in some circumstances.

What is a consent order in UK law?

Ultimately, the Court encourages parties to settle their matrimonial disputes amicably and, accordingly, the Court is open to parties compromising their claims for financial provision and reaching an agreement between themselves, directly.

If the parties are able to reach an agreement between themselves as to the division of the matrimonial assets—for example, properties, capital, contents, liabilities and pensions —and how those are practically to be divided between them both, the terms of the agreement can be recorded in a document known as a ‘consent order’.

A consent order is essentially a draft Court Order recording the terms of the agreement reached. Both parties will sign the draft Court Order confirming their agreement to the terms. This Consent Order will then be sent to the Court for a judge to consider the contents. The agreement only becomes legally binding if approved by the Judge, and sealed by the Court.

Once approved, the consent order’s terms become legally binding, meaning either party can enforce the terms against the other party.
It should be noted that a Financial Court Order is the only legally binding financial agreement available. Any agreement reached between parties which is not sealed by the Court is not legally binding. On that basis, those agreements remain vulnerable, with the terms possible of being ‘overridden’ if later considered by the Court.

How often does a judge reject a consent order?

A Court can reject a consent order and request a change of its contents if they have reason for doing so. The Court will be considering whether the terms of the agreement represents a fair and proper financial provision for the parties in all the circumstances of the case.

So as to enable to the Court to make that decision, the parties must submit alongside the Consent Order an overview of their respective financial positions in a standard Court form, called a D81. This is not optional.

The Court will not be able to approve the Consent Order without this financial information being provided.

Do I always need a consent order?

Even if a financial agreement has been reached amicably and is handled with respect and healthy compromises from both sides, a consent order is still necessary.
Consent orders are needed to ensure that financial agreements are legally binding. They:

  1. Prevent alterations being made to the agreement and disagreements over details frustrating the overall process.
  2. The appraisal process from a judge ensures that the agreement is fair and balanced.
  3. Are drafted by legal professionals to ensure they are enforceable by the Court and so they have the proper legal framework and experience behind them.
  4. They ‘bookmark’ where entitlement to assets begins and ends. If one party suddenly gains access to a newfound source of wealth, this will be protected by the consent order and can’t be claimed for once the agreement is in effect.

Circumstances can change overnight, and what was originally a fitting agreement can quickly become inadequate for one party. In such a situation, the consent order protects one side’s assets from being encroached upon by the other.

How do I set up a consent order?

The best way to begin the process of getting a consent order in place is to contact an experienced law firm who can oversee the task for you.

Though you can file a consent order independently, it must be officially drafted by a qualified solicitor in order to progress to the court’s for approval.

By seeking professional legal help early, you can ensure your agreement gets off on the right foot and that the expectations for both sides are realistic and fair.

Wilson Browne for divorce proceedings and dividing assets

Trust our experienced team of family law & divorce solicitors to help you with divorce proceedings across Northamptonshire and Leicestershire. We take the time to understand your situation and find the best possible route for everybody, ensuring you end up with a fair and legally protected agreement that helps you carry on with life.

To learn more about our expert legal services, contact us today.

Jess Leech

Posted:

Jess Leech

Associate

Jess is an Associate & Legal 500 Recommended Solicitor in our Family Law Team, who advises clients on all areas of Private Family Law including Injunction Orders (Non-Molestation and Occupation Orders), Pre- and Post-Nuptial Agreements, Divorce, Separation of Finances, Cohabitee Disputes and Children Matters.