Consent Orders do not need to be signed off by a solicitor. In fact, neither party is required to obtain independent legal advice in relation to proposed Consent Orders before signing off on them. Quite often, when parties are in agreement with one another, they do not seek independent legal advice, and a solicitor does not, therefore, sign off on the documents being filed.
The documents required to be filed with the Court do not need to be witnessed, whether by a Solicitor or a Justice of the Peace, or indeed by anyone, and both parties can simply sign the documents themselves.
The obtaining of Consent Orders should, however, be contrasted with parties who sign off on a Binding Financial Agreement, which is a very different document, albeit one which achieves the same result in that it finalises the property settlement between the parties. Each party must obtain independent legal advice before signing off on a Binding Financial Agreement, and there are no exceptions to this rule. Each party’s solicitor must sign a certificate which forms part of the Binding Financial Agreement, indicating that they have advised their respective clients about the agreement and its advantages and disadvantages. The requirements of each document are very different, predominantly because a Binding Financial Agreement is not filed or ratified by a Court and is essentially a contract reached between the two parties to the relationship. Consent Orders are filed with the Court and reviewed by a Judicial Officer. Accordingly, there is a safety net of sorts in place which protects the parties to some extent, which protection does not exist in relation to a Binding Financial Agreement.
Having said that, it is typically a good idea for parties to have had some legal advice before signing off on Consent Orders, even if a solicitor does not review the Consent Orders before they are filed, as this gives the parties peace of mind that what they are agreeing to is within the scope of what is fair and reasonable having regard to the circumstances of their case.
What is the difference between a Court Order and a Consent Order?
There is no practical difference between a court Order and a Consent Order in the sense that both are legally binding and both are legally enforceable by the Court.
However, the difference between the two is that a Consent Order is made by agreement between the parties. That is to say, both parties are asking the Court to make the Consent Order following an agreement having been reached between them. Court Orders can either be made by consent or not by consent… read more.