Following disclosure and negotiations over the matrimonial finances, details of any agreement reached should be drawn up in a consent order. The consent order should be submitted to the court, together with a Statement of Information and the court fee. This statement sets out an estimate of the capital and income resources of the parties, in addition to details of the family’s children and the parties’ intentions to live with a new partner in the near future.
The court will not necessarily approve the terms of the consent order, simply because the parties have reached an agreement themselves. When filed at court, the consent order and statement will be considered by a district judge, in order to consider if the agreed terms of settlement are “fair and just” upon both the parties, with the welfare and best interests of any children to the family considered at the forefront of the judge’s mind.
Although the judge is unlikely to undertake a forensic examination of the finances of the parties, they will be concerned over clean break orders if children are involved. If satisfied, the judge will approve the terms of the agreement and provide the required consent to the draft order. If the judge is not satisfied by the terms of the draft order, they may request clarification on a given point or they may order both parties to attend a hearing to consider the proposed settlement further.
The interplay between marital agreements, whether pre or post-nuptial or separation agreements and consent orders is also worth noting. The long held principle that these types of agreements, despite their increasing popularity, cannot trump the court’s jurisdiction to decide finances dates back almost a century and was reaffirmed in the recent Supreme Court case of Radmacher v Granatino . However, the Supreme Court found in Radmacher, that of all these types of agreement, the separation agreement is the one most likely to be followed by the court, given that it is designed to take effect immediately and to address the parties’ prevailing circumstances shortly after the breakdown of the relationship and reflect their wishes relating to children, income, assets and capital.
Whilst it is certainly preferable to have financial agreements embodied in a consent order, the law on separation agreements affords significant weight to these agreements. However, the only way of relying upon the content of the agreement, and thus and payment or capital expected in the future as a result of the agreement terms, is to convert the agreement into a consent order.
Serving Bedford, Northampton and Milton Keynes, our lawyers can help you with your family law and divorce matters. If you wish to talk to one of our specialist solicitors regarding your finances, contact us on 01234 889777 to take advantage of our free consultation service.