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5 August 2015

Recent attempts to appeal divorce consent orders.

A consent order is the legal document recording the financial division upon, or following, divorce and must be adhered to by both parties. Consent orders are intended to be final and therefore successful appeals are rare.

An unsuccessful appeal: Birch v Birch

This case involved a couple who had two children aged 15 and 13, who were living with the wife.  Following the divorce, a consent order was made in 2010, which provided for the husband to transfer his interest in the former matrimonial home to the wife.  The wife agreed to obtain the husband’s release from the mortgage on the property by September 2012, failing which she would sell the property, so that the mortgage could be repaid from the proceeds and husband could be released from the mortgage.

By the end of 2012, the wife was unable to release the husband from his obligations under the mortgage and she did not wish to sell the property.  Instead, the wife applied to the court for the consent order to be varied, so that the property did not have to be sold until the children had completed their full time education.

The wife’s application was refused by the court, who found that the variation the wife sought was an attempt to substitute an entirely different outcome from that provided in the original consent order.

A successful appeal: WA v Executors of the Estate of HA & Others

This case involved a couple with three children.  The husband was older than the wife, who was referred to as “fabulously wealthy”.

Following their divorce, a consent order was made requiring the wife to pay to the husband a lump sum of £17.34 million.  22 days after the order was made, the husband committed suicide.  The wife therefore brought an appeal against the consent order.

The judge allowed the wife’s appeal and the lump sum was reduced from £17.34 million to £5 million.  This was on the basis that the original award was to meet the husband’s needs for housing and income in the long term and the judge had to consider what the award would have been, if he had known that the husband was to die in less than one month.  The judge found that the husband’s long term needs were totally invalidated by his death within a month of the order being made.

Emma Alfieri comments:

“Relatively few appeals have been successful, as consent orders are supposed to be final.  Therefore, the circumstances have to be exceptional for them to be reopened, such as in the above, rather tragic situation where the husband died just 22 days after the consent order was made.  When advising our clients in relation to consent orders, we always discuss all possible future eventualities and highlight that once a consent order is made, it will be final (except in exceptional circumstances).“

For further information, please contact Steeles Law’s family law team.

 

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