Consent Orders and Family Mediation
Published: 27 October 2013
Many couples think that a consent order ensures that all financial links have been severed. This is not necessarily the case. Robyn Allardice-Bourne, Consultant Solicitor, in the Family Team explains how financial claims may endure beyond the actual divorce, especially in relation to the matrimonial home, property and personal assets.
Legally binding orders can be made at the conclusion of a contested divorce hearing or by the parties submitting to an agreed order for the Court to approve. These orders are known as consent orders and set out the terms of the agreement in a prescribed form, which includes details of the parties’ financial situation.
Consent orders vary for each divorce and may cover child support, debts, pensions, pets, the home and maintenance payments. A consent order confirms what the parties have accepted and that all financial arrangements have been made in full and final settlement of all claims arising from the marriage. This provides certainty for both parties as they move on with their lives knowing that their former spouse cannot make a further financial claim.
Some consent orders may include adjustment calculations for maintenance payments, trigger events for the sale of a property or allow the parties to return to the court for a review. Not all Orders therefore can be a "clean break."
Full and Final Settlement
A former spouse may be entitled to make a claim long after the divorce in the event of an inheritance or a substantial change in circumstances such as a lottery win. An order in ‘full and final’ settlement will almost always prevent this although a former spouse with children retains a right to claim for the benefit of those children, but not for their own benefit.
Overturning a Consent Order
In rare circumstances, a consent order may be overturned. If it can be shown that there has been a fraud, a mistake or ‘intervening event’ (something not considered at the time the consent order was made). Such an event would need to have taken place shortly after the consent order was sealed and be of sufficient importance to have a substantial impact; sufficient enough, to undermine the consent order as it was originally drawn up.
Many couples will contact solicitors to arrange a divorce but fail to resolve the issues surrounding finances and children. Family Mediation is encouraged by the Courts to provide a venue with an objective mediator where such matters can be discussed. This gives the couple an opportunity to work through various options to find and agree solutions. It can be an emotional but also an empowering process.
Without mediation or formal documentation, couples often believe that they can settle their financial issues themselves. Often they have reached an informal agreement, believing that because they are divorced no further claims can be made arising from their marriage or civil partnership. Years later, a spouse may make a claim, for example, for a pension sharing order or a lump sum due to a change of circumstances.
Consent orders are complex legal documents and contain specific clauses to dismiss specific potential claims.
All couples that are separating, considering divorce or dissolution should seek independent legal advice to ensure that a consent order is prepared and to provide maximum certainty for the parties to move on with their lives.
For specific advice and information on divorce or any other aspect of family law, please visit the Family Team page.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.