What Happens If A Consent Order Is Breached?
April 29th 2023
Consent Orders are used in divorce proceedings to provide legal standing to a financial settlement that has been reached by divorcing parties.
They often involve clauses to separate properties, savings, debts, and pensions.
But what happens if one party doesn’t comply with a court order that has been approved and signed off by a Judge?
If there has been a breach of the consent order the divorcing parties may be able to resolve the issue between themselves, but if not it will have to be handled in a court of law.
There are various legal options that can play out, so let’s look at what happens if someone breaks an agreed consent order.
Breach of a consent order
Once a divorce financial order has been approved by a court it becomes legally binding and cannot be changed – unless an appeal is made to court and upheld by a Judge.
This means that recurring payments like spousal maintenance or child maintenance have to be paid until such time as required in the consent order. This could be a child reaching a certain age or an ex-spouse getting remarried.
Both former spouses are therefore legally obliged to abide by the terms contained in the consent order.
If either party breaks one of the terms this will effectively be considered a breach of a court order and something that courts can look upon very seriously.
As such, unless there is a good reason for a breach to occur, the court will generally enforce the consent order and the person in breach would be liable to fulfill their responsibilities immediately.
How to report a breach of a financial court order?
The first step should be to find out the reason for non-compliance with the agreed consent order.
If there was a simple oversight or there is an understandable reason why an ex-spouse was unable to meet their obligations on one occasion, it may be easy to put this right.
For example, if a salary payment was delayed due to an administrative error, which resulted in a maintenance payment arriving slightly late, there is generally no need to report this to the court.
However, if there has been a serious breach or a term of the consent order is being repeatedly broken, it may be necessary to apply to the family court to carry out enforcement procedures.
Before reporting a failure to comply with a consent order, it’s a good idea to send a formal warning letter/email to the former spouse, informing them of the nature of the breach of the order and giving them a reasonable chance to explain and rectify the matter.
If the formal letter is ignored or no resolution can be achieved, the next step will be to inform the court that the consent order has been breached and ask them to take enforcement action.
This is done by applying to the court for an interim order using Form D11 Enforcement of Consent Order.
What happens after you inform the court that the consent order has been breached?
The court will assess whether a breach of the consent order was justifiable.
Unless it finds that it was justified, and therefore not enforceable (see circumstances below), it will seek to enforce the consent order.
Enforcement can be done by using a variety of means, depending on the nature of the breach, including for example:
Attachment of earnings order
The court can ask that a specified sum be directly taken from the wages of an ex-spouse to fulfil their obligations to make certain payments (e.g. maintenance payments).
Charging order
If one party owes money to their ex, the court can secure the debt against any property they own. Occasionally, they can even be forced to sell the property to release the money.
The signing of documents
If a property needs to be transferred to the other party or shares sold to release funds in order to make a payment to an ex-spouse, the court can step in and sign any relevant documents required for the execution of the transfers etc.
Warrant of execution
Goods can be seized by bailiffs and held or even sold to ensure payments required under the consent order are made.
Committal for breach of undertakings
If either ex-spouse has blatantly breached a direct order of the court relating to the consent order, the court can order a fine and/or sentencing which, in extreme cases, may even include imprisonment for contempt of court.
In what circumstances may a breach not be enforced?
If the reason for breaching a consent order is considered reasonable by the court, it may refuse to take enforcement action.
Decisions will be on a case-by-case basis, but examples may include:
- An administrative error resulted in delayed payment (as long as this is not part of a pattern).
- Redundancy or financial loss due to external factors (not as a result of gambling etc).
- Illness which results in lower income.
But although a court may decline to enforce the consent order, it is always a good idea for the divorced parties to first discuss this between themselves and try to resolve the situation.
In the case of a material change of circumstances, it may be necessary to amend the original consent order.
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