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Consent order...final or not?
One of the substantial achievements of Family Law has been that parties, having separated, have been able to achieve orders which everyone knows are final. A consent order is made, the parties are told that this is the end of any dispute, and they can move on.
Unfortunately, the Family Law Act 1996 which trumpeted its intention to minimise conflict has re-created unnecessarily many potential disputes. On the 1st of November 1998, an unheralded provision in the Act has been brought into effect.
In essence, it says that where a maintenance order has been made in favour of a spouse, a court can, when considering the variation of that maintenance order, award instead, the payment of a lump sum. This is a new power.
The problem created is that until that date parties have reached agreement on divorce, and had their agreement embodied in a "final" court order, and then moved on. They may now find that where one of the parties is receiving maintenance, that party can at a later point apply to vary the maintenance, and when the court deals with that application, can go back over old ground and reuest further orders relating to capital.
Parties may separate when neither have great capital, but there is a disparity in income. This is reflected by an order for maintenance, but with only a low capital adjustment. After the order is made, if one or the other perhaps inherits a very substantial sum, then under the law as it, the former wife, now receiving perhaps only nominal maintenance, may go back to court and ask the maintenance order to be varied by the payment of capital from the substantial sum received. All the certainty which the law achieved with such difficulty, has gone. The making of consent orders has once again become a potential spur for acrimony and dispute.
The important point is that the court can only make its decision at the time when the application is heard, and in the circumstances which apply at that time. No doubt courts will eventually develop guidelines which will tell us how these things can be properly arranged, but for the moment the clear implication is that parties are likely to resist or to fight for maintenance orders even if they are quite nominal.
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