A consent order is a legally enforceable document that records the financial agreement reached between a divorcing couple.
For example, a consent order may deal with the transfer or sale of the family home, payment of lump sums or periodical payments (spousal maintenance) or pension sharing to name a few.
The term “consent” refers to the fact that the outcome has been reached by agreement, rather than being imposed upon the parties by a judge. A consent order does however have to be considered and approved by a judge before the terms are considered enforceable. The judge will need to be provided with additional financial information to allow them to properly consider the terms of the order and ultimately decide whether it is fair.
Despite requiring the input of the court, you do not need to be engaged in court proceedings to submit a consent order. Indeed, it is encouraged to exchange financial disclosure and negotiate a settlement outside of court proceedings if at all possible.
A consent order is an extremely important document, as it provide certainty and finality in terms of the financial claims of a divorcing couple. Failure to record a financial settlement within a document such as a consent order can store up problems for the future as each party’s financial claims will remain open.
What if a consent order is breached?
Consent orders are legally binding and enforceable. If a party to a consent order fails to comply with the terms of the order, the other party will be entitled to seek to enforce the order.
When seeking to enforce a consent order, a party must first consider which method of enforcement to apply for. If known, they may apply directly to the court for the specific remedy. Alternatively, if the appropriate method of enforcement is unknown, a party may wish to make an application to the court to request that the court determine the appropriate method. In practice this is the application that most parties issue.
The court will be looking to ensure that the order is implemented and so the primary method of enforcement will be to resolve the breach. For example, if a party has been ordered to pay a lump sum to the other but has failed to do so, the court can order the sale of an asset to fund the lump sum.
There may also be additional penalties for breaching an order, such as a fine or even a custodial sentence.
Reasons for breaching a financial consent order
There are generally very few circumstances where it is appropriate to breach the terms of the agreement.
There might be occasions where a party’s circumstances have changed since the order was originally agreed, such as ill health or redundancy, but even in those circumstances the court would expect that party to undertake pre-emptive measures to avoid being found in contempt of court.
It may be the case that there are grounds to revisit and vary the original agreement, however doing nothing and simply breaching the order without taking action is unlikely to find favour with the court.
Where circumstances like those above apply, it is advisable to seek legal advice as soon as possible.
How do you report a failure to comply with a consent order?
The starting point would generally be to contact the party who was in breach, either directly or through a solicitor. They might be a genuine reason, or the breach could be inadvertent. Resolving the matter swiftly, without the need to incur costs pursuing a court application is generally preferable.
If this does not work, or it is evident from that party’s conduct / behaviour that this approach is not appropriate, you will need to issue an enforcement application at court, generally to the same court that made the original order.
As above, the most common method of enforcement is to ask the court to consider the most appropriate method of enforcement. At the time of writing, this is done on a form D50K.
If the case gets taken to court who pays?
The party pursuing enforcement action will initially incur costs, such as the court fee or legal costs if they choose to be represented. If the enforcement application is successful however, it is likely that a cost order will be made compelling the respondent to repay any court fees and reasonable legal costs to the applicant.
If the enforcement action is in respect of an unpaid lump sum, it may be possible to pursue an additional payment for interest from the respondent.
Finally, the respondent may also be ordered to pay fines or other financial penalties.
When is a consent order not final?
Even though the parties may have agreed and signed a consent order, it is not considered enforceable until it has been approved by a judge. It is therefore important not to take steps to implement an agreement that remains unapproved.
Once approved and sealed, a consent order is generally considered final. In exceptional circumstances, you may be able to challenge a consent order, for example if any of the following apply: -
- Fraud or fraudulent non-disclosure or misrepresentation of material facts;
- Inadvertent or negligence non-disclosure of material facts;
- Mistake;
- Undue influence or a lack of mental capacity; or
- An unexpected event that occurs shortly after the order is agreed that undermines the terms of the agreement.
If you have a query regarding the preparation or enforceability of a consent order, you should not hesitate to contact a member of our Family Team.
