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The idea of a consent order is that it formalises an agreement you make with your ex-spouse. Such an agreement must be freely agreed between the two of you and this means that you are each free to negotiate a change to the agreement at any stage before signing.
Once you have made your changes and come to a final agreement, the drafted papers go to the Court for the consent order to be granted.
Usually, there is no Court hearing as the judge will simply approve your consent order to make it legally binding. However, if the judge does not think the consent order is fair, they can:
- Ask questions, in writing or at a hearing, to clarify certain issues if they believe the order is unfair
- Change the order or make a new order to tell you how to divide your assets
- Refuse to approve the order.
Judges can reject a consent order if they do not think it is fair. This is because a consent order, unlike other types of Court order, cannot be appealed or set aside unless in exceptional circumstances.
When judges do this they are not trying to be difficult: on the contrary, they are trying to protect you by ensuring you are not stuck with an unfair or inequitable order.
Once the judge is satisfied, the consent order is ‘sealed’ and becomes legally binding. At this point, the order is final and neither you, nor the judge, can usually change the agreement.
The only ways you can challenge a consent order are if:
- There was an element of fraud or misrepresentation. An example would be if the valuation of an asset was hugely inaccurate
- Your ex-spouse did not fully disclose their financial position. They may have ‘hidden’ savings or significant assets, or not disclosed a pay rise or new job offer. There needs to be a ‘material’ misrepresentation (i.e. not simply getting a salary slightly wrong)
- You lacked the capacity to sign the consent order, for example if you had a mental illness
- You signed the order under duress (so did not enter into the agreement freely). Examples would be if you were physically threatened, or you were told that your children were not allowed to do something unless you signed
- An unexpected event occurs shortly after the consent order is sealed and completely undermines its terms. An example would be if your ex has a sudden, large windfall or you have an accident and you are unable to work.
There may also be circumstances where you and your ex-spouse wish to amend an approved, sealed consent order.
For example, your consent order may say that you will sell the family home. However, you may subsequently decide to transfer it from joint names to one of the parties instead.
Or, you may decide to pay a lump sum instead of ongoing maintenance payments.
The Court does not have the discretion to make changes to a consent order, even where it looks as if this would be straightforward. For example, the amount of a lump sum payment you agree between yourselves cannot be changed in a consent order. So, if you later agree to change the amount you will need to set aside the original order and file a fresh one.
In cases like this you will need to consider the content of the original consent order and will need to have the consent order re-drafted and resubmitted to the Court for approval.
Typically, the original consent order will be set aside at the same time that the new consent order is granted. You must both be absolutely agreed on the need to change the consent order and the new terms.
If you think you have grounds for challenging a consent order, it is important to seek advice from a solicitor straight away. A legal professional will be able guide you through the next steps.
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The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.