Once the Court has approved a draft consent order it is legally binding and cannot be changed unless an appeal is listed and is then upheld by a judge.
The implication of this is that recurring regular payments (such as maintenance payments, child care payments or insurance premiums) have to be paid until an event specified in the order occurs (such as the party receiving payments remarries). Payments could, possibly, be for the life of either party.
If one or both parties breach a consent order by failing to carry out obligations such as paying maintenance, then the order can be enforced.
Consent orders are approved by courts, so a breach of one is effectively a breach of a court order – something that courts look very unfavourably upon. Unless there is a good reason for breaking the agreement, the person would be liable to fulfil his or her responsibilities immediately.
It is good practice to send a warning letter to your ex-huband or ex-wife before you report a breach so that you provide him or her with an opportunity to meet his or her responsibilities. Doing so strengthens your position as a reasonable and fair person.
If your ex-spouse does not respond, you can report the breach to the court using a D11 form.
You might consider obtaining help from a solicitor in completing this form. On it, you state that you think the order may have been breached, and that you would like it to be enforced.
At the same time you send the form to the court, you should send a copy to the other party so he or she is aware that he or she is likely to face court action.
If the case is seen in court, then the party who has initiated the case pays the fees.
If the court finds that there has been a breach, then the person who has broken the order will have to cover the court costs and any solicitor fees of both sides.
Either party may represent himself or herself, or hire solicitors to do so.
If the court agrees that there has been a breach
In most cases, if there has been a breach, the consent order will be enforced by the court.
The person who has made the breach will be required to pay the money owed or carry out the task given to him or her (for example, subscribing for medical insurance for the other) within a certain period of time.
If he or she fails to do so, the court order will be broken, which is punishable by a fine or even prison.
When a breach won’t be enforced
There are some circumstances, however, in which the person breaching the order may not be asked to meet their responsibilities.
This is usually the case if circumstances have changed materially (just like supervening events that we discuss below).
For example, if an ex-husband is unable to pay maintenance because he has been made redundant and does not have the money, then the court is likely to allow him to stop payment until he finds new employment. Such a ruling would be written into the consent order.
Since whether or not an order would be enforced depends on the circumstances, it is often best to seek the advice of a solicitor to clarify whether you are likely to obtain the outcome you want.
There are circumstances in which a consent order can be appealed.
Non-disclosure of material facts when the order was drafted
Particularly in the situation where one party did not disclose all his or her income or the real value of his or her assets to the court when the consent order was approved, it can be challenged.
The key is that the differences were ‘material’, in other words, large enough to make a difference. A mis-statement of salary by 1% is unlikely to be judged as material, but failing to disclose secondary sources of income (such as income from a rental property or income from a second job) are more likely to be material.
Fraud or misrepresentation
Similar to the point above, fraud and misrepresentation are purposeful non-disclosure.
A supervening event is one that has happened since the consent order was approved.
In some circumstances, the consent order could be changed.
For example, if an ex-husband who is receiving maintenance remarries, the ex-wife may have the order appealed so that she does not “look after” her ex-husband’s new wife. Similarly, if there are payments to maintain a lifestyle, but that lifestyle changes, the payments may no longer be suitable. Obtaining an inheritance may qualify as a supervening event.
It is up to a court to judge whether a supervening event merits the overturning of a consent order, not the individuals, even if the individuals are in agreement.
If undue influence was used
A consent order is a mutual agreement.
If one party can present evidence that the other party used undue influence to persuade him or her to accept the order, then the order may be declared invalid.
Examples of undue influence include being drugged or being threatened (either physically or mentally – such as a threat not to allow your children to do something). The level of undue influence must be reasonable.