Consent Applications: Tips and Traps for the Unwary Practitioner.


I sit regularly as a Deputy District Judge approving ....and, just as frequently, rejecting…. consent applications. Many applications are rejected for quite avoidable reasons. With the disclaimer that I do not, and cannot, profess to speak for my fellow judges I offer the following tips to practitioners which will improve the chances of getting applications approved first time and avoid the inherent delay of a rejected application in a system which we all know is stretched to breaking point.

The Basics

If you need to contact the Court try not to telephone. If you write in remember the basics – who do you act for and what do you want the Court to do with your letter?

Remember the Judge is not a rubber stamp, send the relevant number of copies, print one sided it is much easier and quicker to read and make any amendments in RED. The Court does not have to approve the Order. It is a matter of judicial discretion. Help the Judge to understand what you have agreed and why.

The Court’s powers

The proposed order must be ?a) fair by reference to s25; and ?b) an order the Court has power to make.

The Form A

You cannot dismiss that for which you have not applied. Send a Form A with your application. If you are the Respondent then it is the only application and there is no way round it. If you are the Petitioner then the court won’t now have the Petition on the financial file as the files for divorce and finances are separate so the court will not know if there is an application.

Tick the boxes! All except MPS. Make sure the form is signed and dated by the Solicitors on record. 

Check Decree Nisi has been pronounced!!

FPR r29.15

A judgment or order takes effect from the day when it is given or made, or such later date as the court may specify.

Pounds v Pounds 1994 1 FLR 775 CA

Unrepresented Parties

Does there have to be a Hearing if one party/ both is unrepresented? You can use something like the following to try and avoid a hearing. Petitioner/Applicant/Respondent to confirm in writing that s/he has been advised to take independent legal advice, that s/he have been afforded the opportunity to take that advice and either (a) that s/he has taken advice or (b) that s/he chooses not to do so and in either case that s/he fully understands the terms of the proposed order and that it is intended to be binding and final and that s/he wishes the matter to be dealt with on paper without an attendance at court.

Free standing orders for sale?

Remember that the court has no power under the Matrimonial Causes Act 1973 to make a free standing order for sale.  The order must therefore deal with the matter by way of agreement or undertaking in the recitals or be dependent upon an order under section 22ZA or sections 23 or 24 of the Matrimonial Causes Act.

Undertakings

For an order/undertaking to be approved by the court it must be: (a) clear as to its terms; and (b) enforceable. 

Must be compliant with FPR PD33A paras 2.2 and 2.3 and/or Part 37 PD37 paras 2.1 and 2.2.    

Part 33 PD33A paras 2.2 and 2.3 deals with the payment of money.

Part 37 PD37 paras 2.1 and 2.2 deals with the requirement to do or abstain from doing an act.

If both types of undertaking are given then two separate undertaking warning notices and undertakings are necessary.  

Clean Break

Check that the Clean Break in the draft Order reflects the recitals in the Consent Application.

Pensions

Do not apply for the Decree Absolute at the same time as the consent order! If the pension holder dies post DA but before 28 days post order: the order fails and your client is no longer next of kin. Plus Court may reject the consent application and your client will have no protection against their now former spouse’s death. There are clauses in the Standard Orders to help avoid this error.

A Pension Sharing Annex must be approved by the Trustees of the scheme, delete the correct boxes, include any previous names of the parties, check the percentage, who is paying the fees, can they come out of the fund and whose, make sure you have enough copies sealed.

Statement of Information: The Basics

Make sure the form is legible, signed and dated. Also signed to say you/ your client have seen the other party’s completed and signed Statement of Information. Answer all the questions and make sure that the figures are added up correctly!! Don’t leave any boxes blank. 

In deciding whether, and if so in what manner, to exercise its powers under ss 23 to 24 of the Matrimonial Causes Act 1973 the court has an overarching duty to consider the factors set out in in section 25 of the MCA to ensure that any order it approves is both just and fair. The Statement of Information must be fully completed for the court to perform this function.

Specifically, either provide a cash equivalent valuation of the pensions or provide details of the current income derived from any pension in payment.

The Statement of Information requires the figures as they are now pre- implementation of the  consent order not as they will be post order and certainly not a mixture of the two.

Explain the net effect of the proposed order. Where the consent order refers to transfers without providing figures it is impossible to assess the pre and post consent order distribution of assets.  Provide a clear explanation showing the pre and post consent order distribution of assets explaining why the proposed settlement is fair taking into account the relevant factors in section 25 of the Matrimonial Causes Act 1973 including how the parties’ needs and those of any children will be met. 

Pre marital assets

S 25 of The Matrimonial Causes Act does not exclude consideration of pre- and/or post- acquired assets. Explain why the court should treat such assets differently in this case by reference to the s25 factors and in particular the needs of the parties and any children.

I hope this helps! Please feel free to contact me if you would like a copy of the full set of slides.

Fiona M. K. Apthorpe

Secretary Derby and District Law Society Family Committee