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What to Do When Your Ex is Breaching Your Divorce Financial Consent Order

Divorce is already a challenging process, and dealing with the aftermath can sometimes be even more daunting, especially when one party does not adhere to the agreed terms. One of the most concerning situations is when an ex-spouse breaches the financial consent order. This article will guide you through what a consent order is, the implications of breaching it, and the steps you should take if your ex-spouse is not complying with its terms.

A financial consent order is a legally binding document that details the financial arrangements agreed upon by a divorcing couple. It can include lump sum payments, house sales, property transfers, and pension sharing. One of its primary purposes is to ensure both parties have a financial clean break, meaning neither can claim more money in the future.

Once the court approves the consent order, it becomes enforceable by law. Failure to comply with its terms constitutes contempt of court, which can lead to various legal consequences.

The financial consent order is crucial for several reasons:

  1. Clarity and Security: It provides a clear, legally binding agreement on how finances will be handled post-divorce, giving both parties security and peace of mind.
  2. Enforcement: If one party fails to adhere to the terms, the other party can take legal action to enforce the order.
  3. Finality: It ensures a clean break, preventing either party from making future claims against the other’s assets.

A Real-life Example: Sarah’s Case

I recently received a concerned email from a client, Sarah (name changed for privacy), who faced an issue with her ex-husband, Paul (name changed for privacy). Sarah had a straightforward financial agreement: she would pay Paul a lump sum in exchange for his rights to their former marital home, making her the sole owner. Sarah funded the lump sum by remortgaging, but Paul refused to sign the TR1, the document needed to transfer the property to her.

If your ex-spouse breaches your financial consent order, follow these steps:

1. Communicate Directly

First, try to contact your ex-spouse directly to understand why they are not complying with the consent order. Open communication can sometimes resolve the issue without further conflict. In Sarah’s case, she contacted Paul to understand his refusal to sign the TR1.

2. Send a Warning Letter

If direct communication fails, the next step is to send a warning letter. This letter should state your intention to apply for court enforcement if the breach is not remedied or a reasonable explanation is not provided. This formal notice often prompts action from the breaching party.

3. Apply for Court Enforcement

If there is no response or satisfactory explanation, you will need to apply to the court to enforce the consent order. The court will review the application and the breach details. Unless the breaching party can show a good reason for the breach, the court will typically enforce the order.

The court may refuse to take enforcement action if it finds the reason for the breach reasonable. Examples include:

  • Financial Hardship: If redundancy, injury, or illness has significantly affected their ability to meet the obligations.
  • Unforeseen Circumstances: Situations that could not have been anticipated at the time of the agreement.

If financial circumstances have changed, it might be necessary to revisit and amend the consent order’s terms.

The court has several enforcement mechanisms:

  • Attachment of Earnings Order: The court may order that a specified sum is deducted directly from the breaching party’s wages.
  • Charging Order: A debt may be secured against a property owned by the breaching party. The court can even force the sale of the property to pay the debt.
  • Warrant of Execution: A bailiff may be ordered to seize and sell items of value from the breaching party’s home to cover the debt.
  • Property Transfer: If the breach relates to property transfer, the court can sign the necessary documents on behalf of the breaching party.
  • Fines or Imprisonment: The court can impose fines or, in extreme cases, imprison the breaching party for contempt of court.

Sarah’s Outcome

In Sarah’s case, if Paul continues to refuse to sign the TR1, she can apply to the court for enforcement. The court has the authority to sign the transfer documents on Paul’s behalf, ensuring Sarah can rightfully own the property.

If you are the one in breach of the consent order, it’s crucial to address the situation proactively:

  1. Communicate with Your Ex-Spouse: Try to remedy the situation by discussing possible solutions.
  2. Seek Legal Advice: If you cannot meet the obligations due to genuine reasons like financial hardship or health issues, consider seeking legal advice to explore options for varying the consent order.
  3. Do Not Ignore the Issue: Ignoring the breach can lead to severe consequences, including fines or imprisonment.

Who Bears the Costs?

If the court finds in favour of enforcing the consent order, the breaching party is typically responsible for court costs and any legal fees incurred by both parties. They will also need to pay any fines or penalties imposed by the court.

While it’s important to enforce legal agreements, it’s equally crucial to consider the human aspect. Life can throw unexpected challenges at us, affecting our ability to meet obligations. If your ex is genuinely struggling due to unforeseen circumstances, a bit of empathy and understanding can go a long way.

Conclusion and Key Takeaways

Dealing with a breach of a financial consent order can be stressful, but understanding the steps to take can help you navigate the process effectively. Whether you are enforcing the order or addressing a breach, clear communication and legal guidance are key. Remember, the ultimate goal is to ensure fairness and uphold the agreed terms to avoid prolonged conflict and financial strain.

If you find yourself in a similar situation to Sarah’s, know that you have legal recourse to ensure compliance with the consent order. And if you are the one struggling to meet your obligations, seek help promptly to avoid severe consequences.

If you haven’t got a consent order in place, now is the time to get one. We offer four types of consent orders to meet different circumstances:

  1. Clean Break Order: This is the simplest type of consent order for couples with no children or assets to split who want to protect themselves from future financial claims.
  2. Consent Order: Provides a clean break and handles lump sums, property transfers, and house sales.
  3. Pension Sharing Consent Order: Specifically for couples needing to divide pensions. It also deals with lump sums, house sales, and property transfers and provides clean break protection.
  4. High Net Worth Consent Order: This consent order covers more complex financial arrangements such as multiple properties and business assets and those with assets exceeding £1.5 million.

If you can’t find the service you need above or if you would like to discuss your situation before making a decision, we offer a free consultation with a divorce expert. Click here to book a free consultation.

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