The court encourages parties to settle their matrimonial disputes as amicably as possible, so they are open to divorcing couples compromising their financial claims and child arrangements in order to reach an agreement directly between themselves. Where parties do this, the terms of the agreement can be recorded in a document called a 'Consent Order'.
The court encourages parties to settle their matrimonial disputes as amicably as possible, so they are open to divorcing couples compromising their financial claims and child arrangements in order to reach an agreement directly between themselves. Where parties do this, the terms of the agreement can be recorded in a document called a ‘Consent Order’.
If you have concerns about a family law matter and you feel you need legal advice, contact specialist family solicitor Mark Heptinstall of Slater Heelis Solicitors. He is recognised as a ‘Leading Individual’ in The Legal 500 and ranked in Chambers UK, and is described as having “the amazing ability to bring calm into troubled waters”.
What is a Consent Order and are they legally binding?
A consent order is a draft court order setting out the terms of the agreement reached. Both parties sign the draft confirming their agreement to its terms, and it is then filed at court for a judge to consider. There is no expiry date for a consent order, and it will last indefinitely as a final order, which is why it is so important for the judge to ensure the terms are correct.
The consent order only becomes legally binding if it is approved by the judge and sealed by the court. However, a court can refuse, or reject, a consent order and request its contents to be edited or amended.
In what circumstances can a judge reject a consent order?
Finances
Judges will only approve a consent order if they believe the agreement is fair and reasonable, considering all the circumstances of the case. If they think the consent order is none of those things, then they are likely to ask for the application to be changed accordingly and resubmitted. Other reasons for a judge rejecting a consent order include:
- One or both parties failed to provide full and frank financial disclosure – if this is suspected by the judge, they may refuse the consent order because transparency is critical to ensure an appropriate settlement.
- Unfairness – if the judge believes that the terms of the consent order are unfairly weighted in favour of one party, and that it does not provide a fair distribution of the finances or arrangements for children, the judge may refuse it.
- All aspects of the case were not properly considered
- There is evidence of duress or pressure – if one party can show they entered into the consent order under duress, pressure, or coercion, the judge may reject it. People get bullied, hence why a judge is required to inspect the proposed order.
- There was a change of circumstances since the agreement/application was made – if these changes are significant and affect the fairness of the consent order, the judge may reject it.
- Clerical or legal errors have been made in the application – errors or inaccuracies could have far reaching legal implications, so if there are incorrect calculations or unclear language, the judge could reject it.
- Genuine mistakes – these are no-ones fault and can happen during drafting
Children
Besides the above reasons for rejection, aside from full and frank disclosure, if the proposed arrangements for custody, contact, and support are not in the best interests of the child, a judge may reject the consent order. This is because, first and foremost, the courts primary concern is the welfare of any children.
Child maintenance can be included in a consent order, but it will only be legally binding for a period of 12 months. After this time, jurisdiction switches to the Child Maintenance Service (CMS) including calculating the amount payable and enforcement. Of course, if you can agree on a family-based arrangement, there is no need to use the CMS after the 12-month period elapses.
What can I do if the judge refuses my consent order?
If a judge has refused a consent order, you will need to amend the affected terms and resubmit a new application. It could also be necessary to supply the court with further information, such as how the consent order was reached, to ensure all parties understand the implications.
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