What is the process for preparing the terms of a consent order?
Whether your Consent Orders deal with property issues or future child care arrangements, they must be drafted in a way that makes them unambiguous and that they are written in a way that makes them legally binding. If you submit proposed Consent Orders to the Family Court and they are not drafted in a way the court can enforce, the court will reject them and ask you to resubmit them. It is the idea that if one party does not follow the Consent Orders, then the other party must be able to take the matter to court and ask the court to enforce the Consent Orders if one party does not follow them. You will not be able to have them enforced by the court on your behalf. Due to these reasons, although some people do draft their Consent Orders, it is not something that is generally recommended that they do. If you hire a good lawyer, they will ensure that Consent Orders are drafted in a way that ensures they will cover all scenarios and leave no room for ambiguity in their wording. In addition to ensuring that everything is covered in a well-drafted Order, it is also essential that nothing is accidentally left out, which could result in a situation later on in which one party may not be able to enforce the Consent Orders because it was not properly drafted or because something was unintentionally left out.
Generally, there is a good reason for getting a plumber to take care of your plumbing, or for you to hire an accountant to prepare your tax return, and so on. It makes sense to get professional assistance for other aspects of your life, just as you would get a lawyer to draft your Consent Orders for the same reasons you would get help for other aspects of your life. An improperly drafted Consent Order can lead to you having to make a court application down the road to rectify something that wasn’t done correctly. If that happens, the matter can be far more expensive and lengthy than it would have been if the documents had been drafted correctly in the first place.
When it comes to Consent Orders, does each party need to obtain independent legal advice?
It is always a good idea to obtain legal advice before signing off on Consent Orders, but it is not a requirement. The majority of people find themselves in a situation where they have reached an agreement with a former partner that they are happy with, and they do not want to seek advice regarding what might happen if the matter were to proceed to court and be contested by the other party. Unfortunately, having a solicitor can take a long time to resolve, as lawyers who provide advice are always careful to ensure that all bases are covered to ensure that the matter will not become protracted. Most of the time, when people agree, or the fact that they have reached an agreement, it is a fairly simple matter, and they simply wish to get on with things and not have the delays that can arise when both parties retain legal representation and try to resolve the issue together. It has taken some people a long time to get to the point where they can agree with the other person, and they do not wish a solicitor to get in the way of that, which unfortunately can happen if they do not seek legal advice.
Many people seek independent legal advice before sitting down with their former partner and discussing the outcome of the property settlement, or the proposed parenting consent order, with both parties benefiting from the legal advice before and after the meeting. They then do not seek advice about the proposed Consent Orders once they have been drafted since they are confident they have obtained all the information they need to make informed decisions about the outcome.
In this regard, it is important to note that Consent Orders differ from binding financial agreements in that both documents finalize a property settlement between separating parties. Still, they do so in a very different way. A binding financial agreement requires both parties to obtain independent legal advice before they sign it. In contrast, a consent order does not require either party to obtain independent legal advice before signing it.