Do we still need a court order if finances are agreed?

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Walker Family Law
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Do we still need a court order if finances are agreed?

Hardly a week seems to pass without a judge criticising parties to financial remedy proceedings (i.e. proceedings sorting out finances on divorce) for wasting huge sums of money on legal costs, rather than settling the case by agreement.

Just last week a judge commented that only the lawyers were the winners in what he described as “nihilistic litigation” between a couple, that had cost them a staggering £2.3 million in legal fees.

Anyone involved in financial remedy proceedings should make every reasonable attempt to resolve the matter by agreement, rather than via expensive contested court proceedings.

Thankfully, most cases are settled by agreement. But reaching agreement does not mean that it is the end of the matter.

Consent orders, and why they’re needed

A divorce settlement can be agreed in various ways: directly between the spouses, through correspondence between their solicitors, or with the assistance of a mediator.

Whatever method you have used, if you’ve just thrashed out a financial settlement with your spouse you may quite rightly be congratulating yourself, especially if there was considerable animosity between you and your spouse. After all, you have done the hard part.

But you haven’t completed the job.

The agreement you have reached may well be in writing (obviously it will be if it was reached in correspondence between solicitors, and if it was reached in mediation then the mediator will provide a written note of the agreement), and you may think that that is enough to be able to compel both parties to keep to the agreement. After all, a written agreement is binding, isn’t it?

Not necessarily, in the case of a divorce settlement. To ensure that a divorce settlement is both final and enforceable you need to have it incorporated into a court order. Such an order, because it is agreed between the parties, is known as a ‘consent order’.

With a consent order you can be certain both that your spouse can’t ask for more at a later date (save where the agreement allows this, for example where there is a maintenance order that can later be increased), and that you can ask the court to enforce the agreement if your spouse fails to keep to it. The consent order can specifically state that neither party can make any further financial claim against the other; and enforcing a court order is a lot easier than trying to enforce a written agreement.

Getting a consent order

So how do you go about getting a consent order?

It is normally possible to get a consent order without having to attend court. The procedure involves drafting the order and sending it to the court.

One of the parties will need to draft the order. Unfortunately, a financial remedies court order is a technical document that really has to be drafted by an expert family lawyer. There are many possible complexities, and to attempt to draft it without a lawyer would be extremely risky.

The draft is then sent to the other party, or their solicitor, for them to check. Once both parties have agreed the terms of the order it can be sent to the court.

The court will also need another document: a statement of information, setting out brief details of the circumstances of the case, and each party’s means. The purpose of this document is that the court requires this information to ensure that the order it is being asked to make is broadly reasonable.

This is an important point, which is often misunderstood. Many people think that because both parties agree, the court is obliged to make the order. This is not so. The court is under no obligation to make the order. It will only make the order if it is satisfied that the terms of the settlement are broadly reasonable.

If the court is not satisfied then it may request further information from the parties, or an explanation as to why the order it is being asked to make is reasonable. The court may even ask the parties to attend a hearing for this purpose.

And if the court is still not satisfied, then it may refuse to make the order. If that happens then it may be necessary to renegotiate the settlement.

That, however, is quite rare. Normally the court will be satisfied, and it will draw up the consent order, and send it to the parties.