Divorce – Importance of securing a Consent Order
A case reported by the Telegraph shows why it is important to secure a Consent Order in divorce proceedings.
In this particular case, the parties met in 1984, following the Wife’s divorce from her first Husband.
The parties subsequently married in 1989.
The Husband was employed as a Ministry of Defence anaesthetist.
The Wife was a nurse and property developer.
During the marriage the parties lived in a five bedroom mansion in an affluent village near Ascot. The property was worth £3.2 million.
The party’s two children attended a fee paying private school.
The party’s marriage broke down in 2006.
However, the parties were still amicable following their separation and therefore decided to go ahead with a development, creating 15 luxury flats with leisure facilities and a swimming pool in order to maximise the funds available for division on divorce.
The Wife stated that she was advised to try to reach a financial agreement directly with the Husband.
Therefore, the parties discussed matters and decided that the Wife would provide the Husband with a lump sum of £500,000.00 in respect of his interest in the marital home. This would allow the Wife to secure finance to develop the marital home. The Wife would then pay the Husband a further £1 million after the development was complete.
In view of the settlement, the Wife provided the Husband with £500,000.00. This meant that the Husband had a total of £1,130,000.00, including assets he already had in his possession.
However, the parties did not document their agreement within a Consent Order and send it to the Court for approval and sealing.
As such, after the Wife paid the Husband his share of the marital home, she was unable to obtain money to enable her to develop the property, given the Husband had secured a restriction against the title of the property.
As a result, the Wife fell into financial difficulties. This meant that the Wife was unable to retain the marital home and therefore sold the same in November 2009 for £1.9 million.
However, after paying off her loans and the mortgage on the marital home, the Wife was not left with any money to purchase a replacement property.
This meant that the Wife had to go to income support and apply for accommodation.
The Wife claimed her solicitor did not explain that a Consent Order was not binding until it had been approved by the Judge.
The Wife also stated that her solicitor did not advise her of the risks of implementing the terms of the agreement, before having the Consent Order approved and sealed by the Court.
The Wife’s solicitors denied liability.
This case shows the importance of having a Consent Order approved and sealed by a Court in divorce proceedings. This is because a Consent Order is not binding, until it has been approved and sealed by the Court.
It is also important not to implement the terms of an agreement before securing a sealed Consent Order from the Court.
It is only by obtaining a sealed court order that the financial claims each party has against the other by virtue of their marriage or civil partnership can be dismissed, either immediately or at a specified date in the future, protecting their future financial positions
If you need assistance in respect of your matrimonial affairs, whether this is in respect of issues concerning a divorce and the related financial aspects, children, injunctions or cohabitation disputes, please contact our offices on 01323 727321 to arrange an appointment.
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