This question was answered by the Court of Appeal this month.
When you reach a financial agreement with your spouse, you are likely to want this agreement to be converted into a binding court order, so that both parties will be held to its terms in the future.
To obtain a binding court order, you will need to lodge “minutes of consent” with a judge for consideration. Only a judge has the power to convert the agreement that you have reached into this binding court order.
If a case is decided by a judge, then the judge will draft his or her order, reflecting the decision made by the court. However, if two spouses have reached an agreement by themselves, a judge will not do this. As the Court of Appeal explained: “The district judge has neither the time, nor should he or she attempt, to interpret the minutiae of the agreement and draft/redraft the proposed consent order…his task is to approve the order, not to sit with the parties and painstakingly work through with them every possible parameter of the draft in order to ensure they have considered every angle and future eventuality.”
Is it possible therefore for parties to draft this proposed consent order themselves? The Court of Appeal also tackled this question, answering as follows:
“It may be thought that an agreement having been reached, the subsequent drafting of the order is a simple enough task – after all, it might be asked, how hard can it be to write down what has been agreed? The answer is “Very hard”. A consent order in financial remedy cases is a complex legal document which must deal with all aspects of the parties’ financial lives now and for the future; many elements of a financial remedy order apply to every case, no matter how modest or substantial the assets may be.”
The court will consider whether to make an order in the terms requested by the parties, considering all the factors it must take into account when making an order. It is the role of a solicitor prepare that agreement for the consideration of the court.
Contract by Branko Collin.