Should you be the applicant or the respondent in a divorce is a question we hear a lot. But yesterday Andy sent me an email that I think you’ll find very insightful because it reveals a little-known but big problem of being the respondent.
Andy asked if a court-approved financial consent order would be legally binding if his wife decided not to apply for a final order to end their marriage.
It’s a particularly relevant question because the rules around when a consent order takes effect have recently changed.
A consent order, very briefly, is a financial agreement between a divorcing couple. It makes any agreement, such as lump sum payments, property transfers and pension sharing, legally binding and enforceable by a court should one party decide to renege on their agreement. A consent order also provides clean protection after divorce, meaning neither the applicant or the respondent can try and make a future claim against the other party’s inheritance, lottery wins, or other fortunes.
It used to be that the agreements within the consent order came into play from the date approval date of the consent order or the date of the decree absolute (or final order), whichever was the sooner.
This meant that the financial agreement between the parties could be legally binding before the divorce was finalised.
A couple of weeks ago, this changed, and now the agreements within the consent order only come into effect from the date of the final order, so now your divorce must be finalised before your financial arrangements become legally binding.
Why is this important?
The controlling party can delay payments and other obligations
The controlling party is the applicant who has applied for the divorce. They are the controlling party because they are in control of moving the divorce through each stage. Financial agreements in a consent order have deadlines attached to them. For example, the applicant will pay the respondent a lump sum within 30 days of the order. If the paying party wished to delay the payment to the respondent, all they would need to do is delay applying for the final order of the divorce.
The controlling party can still change their mind and attempt to renegotiate your financial agreement
Perhaps more important is that this change adds more uncertainty and risk to your financial agreement. The purpose of a consent order is to give you peace of mind and absolute certainty that the financial agreement you reached with your ex will take place.
Previously, once the applicant and respondent signed the consent order, and it was sent to the court, it would be very difficult for either party to change their mind without mutual agreement. Now it is possible for the controlling party to delay the divorce giving them leverage to renegotiate and change the financial arrangements to benefit them at the expense of the respondent.
Would a consent order be legally binding if your ex decides not to apply for a final order?
Back to Andy’s question. His wife applied for divorce, so she is the controlling party, and Andy is the respondent. Fortunately for Andy, they were granted their conditional order last week (read this article to understand the different stages of divorce). Now they have to wait six weeks before applying for the final order to finalise their divorce and make their agreements within their consent order legally binding.
Andy is fortunate because even if his wife doesn’t apply for the final order, Andy only has to wait three months, and he can apply for the final order himself.
Of course, this would cause a huge amount of stress for Andy, but at least he knows his divorce will conclude in a few months.
A worse situation is if his wife hadn’t applied for the conditional order. If your spouse is the controlling party and they don’t apply for the conditional order, you have a big problem because as a respondent you can’t move forward with the divorce or submit any consent order for approval.
You could file for divorce yourself, but the court will flag your ongoing case, and you would have to ask the court to stop it. This is not part of the normal divorce process and requires judges and legal advisors to review your situation. It would take five to six months to cancel the old divorce case before you could apply for a divorce. Altogether it would take around 14-18 months to conclude everything.
There is an important lesson to learn here.
Be the controlling party, not the respondent.
Why being the applicant in a divorce is important
In some ways, being the respondent in a divorce is the easier option. After all, your kids, friends or family can’t blame you for breaking up the marriage (believe me, they won’t anyway). And if you dislike confrontation or have a more passive personality, making the step towards applying for your divorce is going to push you out of your comfort zone.
But, and it’s a big but, if you apply for your divorce and become the applicant, you become the controlling party. And your spouse becomes the respondent. Being the applicant is important because you are in control of each stage of the divorce, and you can progress your divorce forward. It also means that you have more certainty that your financial agreement will remain because your ex can’t hold up divorce proceedings in an attempt to delay or change your agreement.
It is much better to be in control of your divorce, even though it may be stressful at first.
If you have a question that we haven’t covered or need further clarity, please send us an email or book a call back here.