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CONSENT ORDERS
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A party to a marriage can make a financial claim against the
other at any time provided they have not remarried if the
terms of their settlement at the time of divorce was not
formalised into a binding agreement called a Consent Order.
This is simply a legal agreement setting out the terms, which
is filed at the Court and made into an Order.
Where parties have agreed to an amicable agreement about the
division of their assets they may feel that it is not
necessary to have a solicitor involved at all to deal with
financial issues and may simply use the solicitor for a
divorce only in order to save costs. Whilst we are happy on
such instructions to finalise a divorce without the need for a
court order we will only do so on the understanding by you
that this is against our advice and that you accept there will
always be a risk that your spouse may not keep to the
agreement and wish to claim more in the future.
Each party ‘s rights to claim against the other is only
exhausted if a formal Court order is made. Until such
settlement is made into an Order neither party is bound by the
settlement and either one could at some later date, perhaps
even years later, decide to go to court and make a formal
claim. Even if there is absolute trust between the parties
that what they have agreed on is final it should be borne in
mind that circumstances could change in the future. For
example a party may become unable to work due to health,
become bankrupt whilst the other party may be earning more or
may have received a large inheritance. Even if neither party
intended to come back and claim more they may find that a an
unforeseen change in circumstances makes them feel the
original agreement to have been unfair or they may simply feel
it a financial necessity to make a further claim. Whatever the
reason even if a subsequent claim has little merit the fact
that it is brought at all can result in substantial
unnecessary legal expense. A court would have to decide the
case on the current circumstances and needs of the parties
whilst taking into account the earlier agreement they had
reached.
Cleary it is sensible always to have a consent order made even
in cases where the parties have no matrimonial assets of any
value to divide up since this eliminates any risk of future
claims.
A Consent Order is not merely rubber stamped by the Courts.
Both parties will still have to provide some financial
information and their future intentions as to remarriage,
cohabitation etc so that the Court has a means of assessing
the fairness of the settlement.
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