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Even If You Have Agreed Your Divorce Settlement, You Still Need A Court Order – Divorce

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With the advent of online divorce more and more people are doing
their own divorce, especially since no-fault divorce has made the process
considerably simpler.

And having dealt with the divorce themselves, many are tempted
to go one step further, and sort out financial arrangements
themselves.

There is, of course, nothing to say you must have a lawyer when
you divorce, but there is considerable risk in trying to sort out
financial arrangements without the advice and assistance of a
lawyer.

And this remains true even if you are able to agree a financial settlement with your
(former) spouse.

The need for an order

Many would no doubt think that if they agree a financial
settlement then there is no need to get a lawyer. After all,
lawyers sort out financial settlements, but if it’s already
been sorted out there is nothing for the lawyer to do, right?

Wrong.

An agreed financial settlement, even if in writing, is not
final, or enforceable.

When you agree a financial settlement you will want to be sure
that that is the end of the matter. The last thing you will want is
for your former spouse to come back years later, demanding further
money from you.

But it is quite possible that they could, if the agreed
settlement has not been put into a court order (usually referred to
as a ‘consent order’), in which the court dismisses all
further financial claims by either party against the other.

And a consent order is even required in the simplest of cases,
where the parties just agree to make no financial claims against
the other – without an order they could still make such
claims in the future.

And then there is the question of enforcement. What if your
former spouse fails to keep to the terms of the agreement? You will
then want to ask the court to enforce the agreement. To make sure
you can do this you will need to have the agreement put into an
order, which the court can enforce.

Getting a consent order

OK, so why do you need a lawyer to get a consent order? Why
can’t you get it yourself?

The first reason is that the consent order has to be drafted,
and sent to the court. The court will not draft it for you.

And court orders are technical documents that really should be
drafted by an expert lawyer. Apart from anything else, you
want to ensure that the draft correctly reflects the terms of the
agreement.

The second thing to understand is that the court must approve
the draft order. It will not simply make the order because both
parties agree to it – it will want to ensure that the order
it is being asked to make is at least broadly reasonable, in the
circumstances of the case. If the court is not happy with the
order, it will not make it.

The court therefore requires both parties to file with the draft
order a detailed statement of information, setting out their means
and other relevant factors, which it will use to judge whether the
agreement is reasonable.

A lawyer will be able to advise you whether the agreed terms are
reasonable, and therefore likely to be accepted by the court. The
lawyer will also help you complete the statement of
information.

And sometimes if the court is not satisfied that the settlement
is reasonable it will ask the parties to attend court, to explain
why the order should be made. Obviously, it would be best to have
legal advice, or even legal representation, in such
circumstances.

To summarise, it is quite possible in most cases to deal with
the divorce itself without the assistance of a lawyer. But legal
assistance should still be sought in relation to the financial
aspect of the divorce, even if matters are agreed.

Originally published 9 June, 2022

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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