Consent orders — overviewGeneral principles

For reasons of public policy, the court encourages people to settle their matrimonial disputes amicably. Accordingly, it is open to parties to compromise their claims for ancillary relief (financial orders). However, the court will not simply rubber-stamp any agreement that is reached, as it retains a discretionary role under the Matrimonial Causes Act 1973 (MCA 1973) and the corresponding provisions of the Civil Partnership Act 2004 (CPA 2004). The court will therefore consider whether the agreement represents a fair and proper financial provision for the parties in the circumstances of the case. The court must be given some information to enable it to exercise its discretion under MCA 1973, s 25 by making an order in accordance with the terms agreed by the parties: it cannot lawfully exercise its powers without full and frank disclosure of both parties' circumstances. There is a requirement that two copies of the proposed consent order be lodged, endorsed by the respondent, signifying agreement and that the parties complete a statement of information in Form M (D81) setting out their circumstances. Where Form E/E1 has been filed, the court may dispense with the filing of Form M (D81).

Terms

Drafting the terms of a consent order will depend on the type of agreement that has been reached between the parties. It is common practice to refer to precedents in drafting the terms of any order. Recitals and undertakings may be used to cover issues that the court could not otherwise order. They should be in clear terms and the implications of giving an undertaking should be fully explained. Where possible, the order should be signed by both parties and always where the order includes undertakings given by that party.

Variation

The following orders are capable of variation or discharge by the court and any provisions may be suspended or revived by the court, whether made by consent or not:

• an order for maintenance pending suit

• a periodical payments order

• a secured periodical payments order

• an order for lump sum by instalments

• a deferred lump sum order that includes provision in respect of pension rights made by pension attachment

• an order for settlement of property when made pursuant to a decree of judicial separation

• an order for sale of property

• any pension sharing order if the application is made at any time before decree absolute/final order

Lump sum orders and property adjustment orders may not be varied. However orders may be amended under the inherent jurisdiction of the court only to give effect to the intention of the court.

The principles that the court applies are set out in MCA 1973, s 31(7) and the corresponding provisions of CPA 2004, which are: all the circumstances of the case, with first consideration being given to the welfare of any child of the family. The circumstances include any change in any of the matters to which the court has regard, including any change in the s 25(2) factors since the making of the original order.

Setting aside

Once a consent order has been made, a party may not resile from it: they may only seek release by an application that asserts some vitiating element.

The grounds upon which an order may be set aside are as follows:

• fraud

• mistake: if the complaining party is in some way to blame for the mistake by failing to investigate properly and put their own evidence before the court then an application to set aside is likely to be refused

• non-disclosure or misrepresentation of material facts at the time when the order was made

• new events have occurred since the order was made that have invalidated the basis upon which the order was made: a new event is termed a Barder event following the 1987 case of Barder v Barder (Caluori Intervening), which set out the conditions necessary to set aside an order on this basis:

• • the new event invalidates the basis upon which the order was made so that if leave (permission) to appeal out of time were given, the appeal would be certain or very likely to succeed

  • the new event should have occurred within a relatively short time of the order having been made

  • the application should be made reasonably promptly in circumstances of the case

  • the grant of leave (permission) to appeal out of time should not prejudice third parties who have acquired, in good faith and for valuable consideration, interests in property that is the subject matter of the order

Public policy requires that there is finality in litigation; therefore, orders are not set aside unless there are compelling reasons to do so.