I received a very worried email on Monday from one of my clients (let’s call her Sarah to protect her privacy) asking for our advice. We had prepared her court-approved consent order, and she wanted to know her next steps if her ex-husband (let’s call him Paul) breached the consent order – breach is the legal term for failing to do their part of a contractual agreement.
Sarah’s financial agreement is pretty straightforward. She would pay Paul a lump sum, and he would give up all his rights to the former marital home so that Sarah owned the house outright. Sarah has funded the lump sum by remortgaging. Everything is ready, but Paul is refusing to sign the TR1, which is the document that will transfer the property over to Sarah.
What is a financial consent order?
A financial consent order is a document that describes the agreements made between a divorcing couple concerning their finances, such as lump sum payments, house sales and property transfers and pension sharing. Importantly, it also gives both parties a financial clean break from each other, meaning that neither party can change their mind about their financial agreement and try to claim more money in the future.
Once drafted and approved by the court, it becomes legally binding. Being a court order (an order means an instruction from the court), any failure to comply with the terms of the order means that you are in contempt of court, which is a serious offence.
What happens if you breach a consent order?
If one of the parties breaches the consent order, the issue may be resolved between the parties themselves. If this is not possible, an application will have to be made to the court for the court’s to enforce the ruling.
Unless it can be shown there is a good reason for the consent order being breached, the court will usually enforce the terms of the order.
What should you do if your ex breaches your consent order?
Your first step, and the advice we gave to Sarah, is to contact Paul and find out why they are not complying with the consent order. This becomes more difficult (and costly) if you aren’t on speaking terms with your ex because you may have to use a solicitor to make contact.
If your ex does not respond, the next step would be to send a warning letter to them to notify them that you will make an application to enforce the consent order if they don’t remedy the breach (remedy is the legal way of fixing or resolving the situation) or if they don’t provide a reasonable explanation for being in breach.
If no response is received or a reasonable explanation given, then you can make an application to the court to enforce the consent order.
What would be a reasonable explanation for breaching a consent order?
If the court considers the reason for breaching the consent order reasonable, it may refuse to take enforcement action. Examples of this would be the inability to meet obligations because redundancy, injury or illness has harmed your finances or ability to meet your obligations.
If a change in your financial circumstances is ultimately the reason for not being able to meet obligations, then it might be necessary to revisit and amend the terms of the original consent order.
What steps can the court take to enforce a breached consent order?
Once an application is made, the court consider the application and the breach. The court will usually enforce the consent order unless the breaching party can demonstrate a good reason for the breach.
There are various ways that the court can enforce a consent order depending on what has been breached. For example;
- The court may order that a specified sum is taken directly from your ex-spouse’s wages if they have failed to make payments, such as maintenance payments. Their employer will pay the money to the court, who will use it to pay their debt. This is called an attachment of earnings order.
- The court could order that a debt is secured against a property owned by your ex-spouse, known as a charging order. The court even has the power to force them to sell the property to pay the debt.
- A warrant of execution could be ordered so that a bailiff can enter and remove any items of value for sale from your ex-spouse’s home to ensure that your outstanding payments are made.
- If, like Sarah, the terms of the order that has been breached relate to the transfer of property and your ex has not signed the documents, then the court has the power to sign the documents required to execute the transfer without your ex-spouse’s involvement.
- The Court can also impose a fine and, in more extreme circumstances, imprison the breaching party for contempt of court.
What should I do if I’ve breached my consent order?
If you have breached your financial consent order or have received notice that your ex-spouse is considering taking action against you for breaching the terms of your divorce settlement, you should speak to your ex to remedy the situation and avoid court proceedings.
The worst thing you can do is bury your head in the stand and ignore it. If you fail to comply with the terms of the order, you may face any of the consequences above, including a real risk of receiving a fine or even a custodial sentence.
What should I do if I genuinely cannot fulfil the agreements of my consent order?
If a change in your health or financial situation is preventing you from meeting your obligations, then it might be necessary to revisit and, if necessary, change (known as vary) the terms of the original consent order. You can do this for a low cost and without attending court if you and your ex-wife or husband agree to the changes.
If you do not agree to vary the consent order, you will need to take legal advice to work out the best next steps to avoid being found in contempt of court.
[Side note] I’ve just been watching Million Dollar Listing New York on Netflix. It’s an old show, but the characters are great. There’s a storyline where one of the buyers goes missing. Luis, the sales agent, is cursing and chasing him down. One week later, the buyer turns up. Watching, I knew it was bad. I could feel it. The guy was very unhealthy and looking at a heart, lung and kidney transplant. His future wasn’t good, and Luis knew it. The deal suddenly wasn’t important anymore.
I’ve done it myself and got so caught up in something that I’ve forgot about humanity. Yes, of course, you want what is yours, but try not to let that cloud your judgement if your ex really is in trouble.
Who pays if you have to take your ex to court for breaching your consent order?
If the court agrees to enforce the order and has found that your ex has breached the consent order, they will be liable for court costs and any legal fees incurred by both of you. They will also have to pay any fines or penalties and meet any obligations within the consent order.
The bottom line
If your partner breaches your consent order agreement without good reason and refuses to remedy the situation, then you should take them to court, confident that the court will enforce it and your ex will pay your court fees.
However, if you find yourself in a situation where you cannot meet your obligations, it is important to speak to your spouse first to discuss if the agreement should be varied. If they refuse, you need to seek legal advice to avoid being in contempt of court.