DRAFT CONSENT ORDER BINDING ?

Hi there, quick question if I may...

Once a draft Consent Order (on financials) has been agreed/signed etc by both parties, and filed with the court - is this in any way binding?

I ask because I gather that it can take several months to hear back from the court with regards an approved order which is then binding.

Are the parties expected to wait for the court's decision, before they proceed with putting properties up for sale, transferring monies/assets etc etc?

Is there a quicker way to get a binding agreement without having to wait for the court? Can it be done privately even? (there are backlogs at the public courts apparently)

I also read somewhere that 'case law' suggests that an agreed draft order can be binding even if it has not yet been approved by the court ...is this true?

Looking for some clarity here, as we have sent an agreed draft order to the court, and are now in limbo as to whether we should start to "execute" the agreed draft now, or wait. And what happens if there is a material change between sending the draft, and getting it back approved? (i.e. redundancy, illness, debt, windfall etc etc) ?

Hope you can help!
Fred.

When parties have agreed, based on certain criteria, they have a 'concluded agreement' which means that they can be held to it even if unsigned. It is possible to apply to the court for an order based upon a concluded agreement when one parties seeks to back out (resile) from the agreement.

However, you are a stage further as you've both signed and the application has been sent to the court.

If the agreement is broadly in line with the range of orders the Court would have made if asked to make a decision following trial, the agreement will be accepted and turned into an order.

Technically parties are obliged to tell the Court of any developments between the signing of the application and the making of the order. However, the time to issue consent orders is getting shorter as backlogs are cleared and the new systems and procedures are being implemented.

If the order is issued it is possible to have it set aside due to developments shortly after the order is made. Those developments have to be extreme* and the application has to be made promptly to have any chance of succeeding.

*an application of this type is known as a Barder application as the case of Barder v Barder set the standard where the ex husband applied to set aside a financial order as his ex wife killed their children and committed suicide thus rendering the basis of the financial order void as she had no need for the money or provision for the children.

As for implementing the terms of the agreement before the order is issued - there is nothing to stop you from doing this although there will be risk if the agreement is demonstrably weighted in favour of one of the parties.

Personally I would wait for the order to be issued which is likely to be quicker than you might expect. If the proposed agreement involves sale of a property, there is no reason to delay instructing an estate agent to make some progress as the only outlay should be for the EPC although you should check the terms and conditions before committing yourself.

Charles

Thank you so much for an extremely detailed answer - this is so much appreciated.

The order we have applied for is quite different to that which a final hearing judge may make. It provides my ex-wife with a much larger share of the capital (house sale etc), but dismisses any spousal maintenance and pension-sharing. This way, we both walk away with a Clean Break. She and I are both happy with this.

But I guess (even if we both agree) the court may disagree on such an order if it thinks the capital split is too uneven. But is this really likely if both parties agree and are keen to move on with a clean break? I suspect not?

Lastly, you mention consent orders are turning around a bit quicker now. Do you have any idea roughly what that turnaround time might be? (I appreciate some courts are busier than others)

Thanks again.

Hello!
Having gone through this the past few months, I submitted my consent order to BSE at the end of August, and heard back today it’s been approved.
You can’t hurry the judge unless you’re in physical danger. It is not legally binding until the judge has approved and then it’s been typed up and posted to you. The info you put on there has to be pretty much the same now and when it’s approved. You have to tel them if there is a considerable change to the information given.
Good luck, it’s so hard, it’s just a waiting game now.