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Is a consent order Final
In many family breakdowns, the parties reach an amicable arrangement about their property. This can be either within a divorce, or on on informal separation. We encourage this, but it is usually wise to embody the terms of this agreement in a ‘consent order’, an order made by the court in divorce proceedings setting out that agreement.
The parties to a marriage have the right to one court order which re-arranges their financial (usually capital) affairs. Until such an order has been made, or he or she remarries, both remain free, at any time later, to go to court and to ask for an order appropriate to the time when the application is heard. Circumstances may well have changed in between times, and a court may very easily take the view that the original arrangement is no longer appropriate.
We are often asked to draft separation agreements when a divorce is not immediately in view. Such agreements do not remove this right to a court order, and either party may still apply for one in a subsequent divorce. When a court makes that decision, the separation agreement will be one, and only one, of the elements it considers. The court looks at the situation which applies at the time it makes the order. It will be quite free to ignore any previous arrangements, whether informal, or contained in a separation agreement. Such agreements must be entered into only on this understanding. The value of most separation agreements is therefore very limited. Sometimes they are downright dangerous.
Often, even in a divorce, there is still sufficient trust to finish the divorce without an order. This can be just as unsafe. Even if the trust is justified, one party may later lose control of his or her affairs; they might be bankrupted, or suffer a cataclysmic accident. An application might then be made, in effect, without their consent. Equally, one may acquire unexpected wealth, and the other find it irresistible to apply for a share. Such an application may not be likely, and may not succeed, but they do happen.
If any 'non-order' arrangement is challenged, the result is usually substantial additional expense. The court has now to decide, not only what is the current position of the parties, but also what weight should be given to the earlier agreement.
Before making a consent order, courts now also ask us to obtain quite detailed information about the respective financial positions, and ‘romantic intentions,’ of the two parties. They are keen to ensure that the agreements contained in the order have not been obtained by the parties in ignorance of any factor which might have affected their agreement. They want each side to make a full, documented, and recorded disclosure of their respective assets. It is also much easier if both parties have independent legal advice.
We respect our clients' views and wishes, and acknowledge that clients know more of the characters involved than we do. A client may instruct us to go ahead without such an order. If so the client must accept that this will be against our advice. We can make no promise that any arrangements made will stick. That can only happen when such arrangements are embodied in a court order which 'exhausts' the parties' rights.
|Important: Please note that our law-bytes are retained for archival purposes only. The law changes, and these notes are often, now, out of date. You must take direct advice on your own personal situation and the law as it currently stands.|
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