Can a Consent Order be contested?
In a recent court hearing, the judge dismissed an application to set aside a consent order made by the wife. The wife claimed that she received insufficient legal advice prior to the consent order. Her claim was that the husband told her to use a law firm that did not have a family law department, but was solely a commercial law firm.
She also claimed the husband did not disclose all financial material, claiming he moved the funds of a $5 million property sale into a trust that benefitted him. The husband said he did not have any beneficial interest in the trust, saying it was used to pay debts.
The judge declined the application to have the consent order set aside. This is because the presiding judge at the time would not of agreed to the consent order if it were unfair. So it wouldn’t matter if the wife had legal advice or not, a judge would never approve a consent order if it were unfair.
With regard to the non-disclosure in this case, the judge stated the wife’s claim there was non-disclosure of assets were unfounded. The trust she had mentioned as being hidden, was actually disclosed in the Form E (statement of assets).
So how can a consent order be contested after it has been agreed by a judge?
Consent Orders and other financial settlement orders made in divorce settlements are designed to be final. For this reason judges are very wary of allowing any challenges against them on appeal. There is even a school of thought that Consent Orders themselves cannot be appealed against, simply by virtue of the fact that the people involved have agreed them.
A challenge to a Financial Order might be made for one of the following reasons:
- Non-disclosure of relevant facts
In financial disclosure, one party fails to tell the other about assets or the true value of assets. Even failing to tell the other about a job offer with a substantial pay rise will be cause.
- Fraud & Misrepresentation
If one party fraudulently mis-values an asset with the intention of affecting the financial order.
- New and Subsequent events
This could be where something significant happens shortly after the approval of the financial order. An example might be where the family home is transferred to the wife as she was primary carer of the children. Shortly following the approval, the wife died, leaving the house in her will.
- Undue influence
One party may apply an unreasonable amount of influence over the other party to sign the consent order
Judges do not want to open the floodgates to challenges to financial orders , so in order to challenge a financial order, there must be very strong grounds for doing so. Financial orders will unlikely be altered unless there is substantial evidence to change the outcome of the order.