In previous blogs, I have touched on different aspects of financial cases such as maintenance or the importance of obtaining a clean break. In these blogs, I stressed the importance, within any divorce, of obtaining a Consent Order dealing with all the financial claims arising from a marriage. The reality is that Consent Orders are not straight forward documents and the implications of an incorrectly drafted Consent Order have been highlighted in a recent Court of Appeal case.
What is a Consent Order?
A Consent Order is a document that records the agreement reached by a husband and wife, within their divorce, dealing with all the financial claims that they have against one another. It will record agreements such as lump sum payments, maintenance and pension sharing orders.
Within any divorce, no matter how limited the assets are - it is essential that both husband and wife obtain legal advice in relation to the preparation and implementation of a Consent Order.
The Court of Appeal case
Without wanting to bore you with the details, a case was recently referred to the Court of Appeal to consider the liability of a solicitor arising from the drafting of a Consent Order. Within the judgement, Lady Justice King is recorded as stating the following, “It may be thought that an agreement having been reached, the subsequent drafting of the order is a simple enough task – after all, it might be asked, how hard can it be to write down what has been agreed? The answer is "Very hard". A consent order in financial remedy cases is a complex legal document which must deal with all aspects of the parties' financial lives now and for the future; many elements of a financial remedy order apply to every case, no matter how modest or substantial the assets may be.”
The Implications
Lady Justice King’s quote highlights the importance that legal advice plays within any Divorce. Even where a husband and wife have reached an amicable agreement, it is almost essential that legal advice is sought on the preparation of a Consent Order. The implications of incorrect drafting of a Consent Order are that a party may enter into an agreement that is contrary to what was initially agreed. The result could mean that either the husband or the wife is left in financial disarray with a Consent Order that is not enforceable, as it does not properly record the agreement reached.
If you require advice or assistance on the drafting of a Consent Order, please contact one of our family law experts on 01295 270999 (Banbury Office) 01869 252 161 (Bicester Office) 01788 579 579 (Rugby Office).
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