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Consent Orders And The Effect Of Other Agreements Notes

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Consent Orders and the Effect of other Agreements Orders the Court can make

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Income Orders o S.23 MCA 1973: Allows for a Peridoic Payment Order to be made
? These can be weekly, monthly or annual
? And can be secured against property or be unsecured o However, these have essentially been confined to the scrap heap
? If there are sufficient assets, a lump sum order will normally be made.

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Property Orders o Three main types
? Lump sum orders

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This requires a lump sum of money to be handed over by one spouse to the other o These can be made in instalments
? Transfer of Property order

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The most common transfer of property order is an order that one party transfers a share of the matrimonial home to the other o The court can also order a transfer to be made to a party to be held on trust for the child(ren)
? Power to order sale

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S.24A of MCA 1973 = power to order sale of property belonging to either both spouses or just one

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The proceeds are then divided by a LSO.

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Clean Break Orders o What are these?
? The making of such an order leads to finality - there can be no more applications for spousal support (this DOES NOT affect obligations under CSA 1991 for children though)
? S.25A(1) MCA 1973: There is a duty on the court to consider whether it would be appropriate [for the court] to exercise its powers

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that the financial obligations of each party to the other will be terminated as soon as the grant of the decree o as the court considers just and reasonable o The advantages and disadvantages of clean break orders
? Benefits:

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Parties free to pursue careers and lives without worrying about their actions leading to applications to vary maintenance payments

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Parties may not feel emotionally free until financial orders end - but are encouraged to keep in contact if children, so bit of a paradox.

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If the recipient intends to remarry, she may prefer a lump sum clean break, as this will leave her free to remarry w/o losing maintance

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It avoids future stress of not knowing whether payments are going to be made,
? Disadvantage:

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It's a break - court ties its hands hoping to avoid unforeseen circumstances

Consent Orders

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What is a consent order?
o Negotiation between the parties
? Parties are being encouraged to resolve their financial disputes without having to go to court

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Either through lawyer negotiation

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Or through mediation o Why might we want to encourage this?
? Parties are encouraged to negotiate rather than fight it out

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Reduces conflict and acrimony, which enables the parties to move forward o Modern family in family law, still recognise that even if status relationship ends, want people to still be bound to what they agree.

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Also cheaper for parties as a whole for legal costs o And also mainly cheaper for the state - do not need lengthy court hearing or court order o Role of the court
? The Family Proceedings Rules 1999 mean that all the parties and their lawyers have to attend a Financial Dispute Resolution Hearing

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This is conducted by a judge who would not preside over the subsequent trial if there was one

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This gives the judge a bit of leeway to bang the parties' heads together and strongly encourage them to settle o While providing guidance on the likely results of trials.
? Under s.33A MCA - Court is supposed to scrutinise the agreement and compare it to the decision they would have reached via the s.25 exercise

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Not a way to avoid regime - part of it o Davis et al: Research shows that the courts give very inadequate scrutiny
? Consent orders can differ quite significantly from what we expect might have been ordered if had gone to trial.

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Harris v Manahan o Ward LJ:
? The court is no rubber stamp, nor is it a forensic ferret
? Herring: So while the court won't go through the order line by line, it can make sure that the agreement seems reasonable

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And has the power to refuse to make it if it appears not to be

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What status does the agreement have before it has been made by the court?
o Edgar v Edgar
? Held CoA

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An agreement made that is then resiled on before the case reaches the court to make a consent order o Is not binding, but the court will take it into account when the case goes to a contested hearing

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