Can a Judge Reject an Agreed Consent Order?
May 24th 2023
The court’s role when considering a draft financial consent order is not simply to act as a rubber stamp, even if both parties are happy with the arrangement.
The process of applying for a financial consent order in divorce proceedings can be quite daunting, so it’s understandable to want to know whether your agreement can be rejected.
In this article, we’ll explore the topic of consent order rejection and whether a Judge can reject one if it’s been agreed and if so, how often does it happen.
So, Can a Judge Actually Reject an Agreed Consent Order?
The rejection of consent orders in divorce proceedings in England and Wales is relatively rare, as long as the proposed order is fair, reasonable, and in accordance with the law.
When both parties in a divorce case reach an agreement and submit a consent order to the court, it is generally presumed that the court will approve it unless there are valid reasons to reject it.
https://www.mumsnet.com/talk/divorce_separation/3791661-When-is-a-consent-order-rejected
However, there are situations where a judge might reject an application for a financial order, and the most common reasons for rejection may include:
1) Unfairness
If the judge believes that the terms of the consent order are unfairly weighted in favour of one party and that it does not provide a fair and equitable distribution of assets or arrangements for children, they may reject it.
2) Non-Disclosure
If one or both parties fail to provide full and accurate financial disclosure, and this non-disclosure is discovered or suspected, the judge may reject the consent order. Transparency in financial matters is crucial to ensure a fair settlement.
This point cannot be stressed enough. Financial disclosure can be done using Form E, which is a detailed document that both parties need to complete.
3) Inadequate Arrangements for Children
If the proposed arrangements for child custody, visitation, and support are not in the best interests of the children involved, a judge may reject the consent order. The court’s primary concern is the welfare of the children.
4) Pressure or Duress
If one party can demonstrate that they entered into the consent order under duress, coercion, or pressure from the other party, the court may reject it. Consent orders should be freely and voluntarily agreed upon.
A Judge may question why one spouse accepts less than 50% given potential differences in income levels, etc.
The bottom line is that people do get bullied into accepting less than they could get hence the reason why a judge is required to inspect the proposed order.
If you’re applying for a clean break order, the court usually has less to inspect due to both parties leaving the marriage with what they entered it with.
5) Change in Circumstances
Sometimes, circumstances change after an agreement is reached but before it is finalised in court.
If these changes are significant and affect the fairness or appropriateness of the consent order, the judge may reject it.
6) Legal Errors
Financial orders need to be drafted by family law solicitors to prevent errors in language, values, and legal clauses.
If there are errors or inaccuracies in the consent order that could have legal implications, such as incorrect calculations or unclear language, a judge may reject it.
Getting independent legal advice is always recommended and instructing a family law solicitor to draft your proposed consent order is required.
Please do not attempt to write your own consent order. As well as potentially putting your financial future at risk, it’s going to be rejected by the court.
Getting Advice
It’s important to note that judges typically aim to facilitate settlements reached through mutual agreement and only reject consent orders when there are genuine legal or fairness concerns.
Parties involved in divorce proceedings are encouraged to seek legal advice and ensure that their consent orders are drafted correctly and are in line with legal requirements to minimise the risk of rejection by the court.
Additionally, family law and court practices can change over time, so it’s advisable to consult with a legal professional for the most up-to-date information on this topic.
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