Q&As

Does an undertaking in a consent order bind the estate of the party giving it if they die?

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Produced in partnership with Christi Scarborough of 42 Bedford Row
Published on LexisPSL on 16/12/2016

The following Family Q&A Produced in partnership with Christi Scarborough of 42 Bedford Row provides comprehensive and up to date legal information covering:

  • Does an undertaking in a consent order bind the estate of the party giving it if they die?
  • The nature of consent orders in the context of financial remedies proceedings
  • The court’s role in relation to consent orders
  • The meaning of an undertaking within a consent order
  • The position of the estate
  • Challenging the order on other grounds

This response considers the question of undertakings within the framework of proceedings under the Matrimonial Causes Act 1973 (MCA 1973). Different considerations and reasoning may apply to financial orders under the Domestic Proceedings and Magistrates' Courts Act 1978 (DPMCA 1978), the Matrimonial and Family Proceedings Act 1984 (MFPA 1984), the Children Act 1989 (ChA 1989) and the Civil Partnership Act 2004 (CPA 2004), although it is likely that the principles detailed here will apply by analogy.

The nature of consent orders in the context of financial remedies proceedings

It is important to remember that in relation to proceedings under MCA 1973 consent orders are statutory in nature, and are subject to a higher standard of judicial scrutiny than in the wider legal context. MCA 1973, s 33A defines a consent order as ‘an order in the terms applied for to which the respondent agrees’, and restricts the information that may be taken into account when considering the order to the prescribed information supplied with the application (ie the prescribed forms in relation to Part 9 of the Family Procedure Rules 2010, SI 2010/2955 (FPR 2010) as listed in FPR 2010, PD 5A Table 1). In effect, this definition means that such an order is made on the application of both par

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