Consent orders

General principles of consent orders

The courts encourage parties to settle their matrimonial disputes amicably and accordingly, it is open to the parties to compromise their claims for financial provision. 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 fair and proper financial provision for the parties in all the circumstances of the case and must be given specified 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. The court cannot exercise its powers without full details of both parties' circumstances.

See Practice Notes: Index of family standard orders and General principles of consent orders and Financial consent orders—checklist. The following Precedent letters may be sent by practitioners to their clients: Financial applications to the court—client guide and Financial disclosure and Form E—client guide.

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High Court judgment demonstrates usefulness of section 423 of the Insolvency Act 1986 in Schedule 1 claims (Re P (A Child) (Financial Provision))

Family analysis: In this Schedule 1 case the mother received, for her son’s benefit: a housing fund of nearly £1m (the property to be held on trust); child maintenance (including ‘HECSA’/carer’s allowance) until completion of his first degree; and lump sums in respect of his capital needs and her own substantial liabilities (chiefly relating to her unpaid legal fees). The father (whose resources could be measured in the ‘tens of millions of pounds’) had sought to prejudice the mother’s claims via transferring his valuable shares to family members, who then transferred the same into a trust structure (settled under Czech law). A further onwards transfer was then made of the trust’s assets into a Liechtenstein foundation. Inferences were drawn by the court in respect of the level of the father’s wealth, and specifically as to the value of the transferred shares. Detailed findings were made against him in respect of the identified transactions, which had been the focus of the mother’s section 423 application. Although a section 423(2) order was not actually made, the application was adjourned pending the father’s compliance with the award, with security in the sum of £600,000 also ordered, alongside a continuation of the freezing orders made earlier in the proceedings. David Wilkinson, solicitor at Slater Heelis, considers the issues.

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