If we agree, do we need a court order?

The short answer is that it depends very much on what your agreement is!  Different rules apply in different types of cases, and in different situations.  Some of the more common situations are set out in more detail below:

For children cases, the court follows what is called the ‘no order’ principle.  This means that the usual position for children is that it is better for them to not be subject to an order unless they have to be.  Therefore if their parents can agree what should happen for a child, the court will not usually consider a consent order to be necessary and an application needn’t be made.  There are however a few exceptions to this general principle:

• If you are already in court proceedings about your child and resolve the issues by agreement part-way through, then the court will usually record that agreement in a consent order in order to bring the proceedings to an end.  
• If an order is necessary to achieve a legal situation that cannot be achieved without court intervention.  For example, a person will acquire parental responsibility for a child where there is a “lives with” order in their favour regarding that child.  If there is no other way for that person to acquire parental responsibility by agreement, then an agreed “lives with” order might be the best and easiest way to achieve the desired outcome.

The court also has a supervisory and inquisitorial jurisdiction in children cases, which means that it will not approve any order (even if it is by consent) unless the court is satisfied that the order is in the best interests of the children concerned.  This means that the court will usually want some evidence about the children’s welfare before making any order.

For cases about the financial provision for children, the general principles set out above apply.  However for the majority of parents and carers in the UK a significant exception is in relation to child maintenance.  A court order for child maintenance – whether by agreement or not – can only oust the jurisdiction of the Child Maintenance Service (CMS) for up to twelve months.  The rationale between this is that maintenance is for the benefit of the children, not the parents, and so parents cannot bargain away a child’s right to be maintained.  The effect of this is that after one year, either party to a court order for child maintenance could apply to the CMS if they have jurisdiction, and any calculation made by the CMS will supersede whatever provisions for child maintenance were included in the order.

For divorce cases, you do require a court order to dissolve a marriage or civil partnership.  For finance cases on divorce, we would strongly advise that any agreement you reach be recorded in a consent order.  This is because – even though you can take steps to implement the agreement without any order such as selling a property and dividing the proceeds – if there is no court order then any agreement between you might not be binding in the future.  Unless a court order is made, then one or the other of you might be able to apply to a court at a later date and argue for more than was recorded in your agreement, including sometimes a share of any assets, income or pension provision accrued after the separation.  The court would look at the totality of the evidence before it at that time and make a decision that it thinks is fair, and whilst any agreement would be a factor it would consider, it is not bound by that agreement.  There are also some possible elements of an agreement that cannot be implemented without an order, like sharing the benefits of a pension between you.  In finance cases, the court also has a supervisory jurisdiction to make sure that the orders it makes are fair.  Therefore it will look at the terms of your agreement to check that they seem fair to both of you (and your children) before approving a consent order.

For unmarried couples’ finance cases, it is usually unnecessary to get a court order to implement any agreement.  However, your agreement should be recorded in writing and follow all of the rules necessary to be enforceable as a contract or a deed, and so it is important to consider having a lawyer help you to draw this up.  This is because the general laws of contract and trusts apply to unmarried couples’ situations with their finances.

If you want to talk about consent orders further, or have more general concerns surrounding your family situation and want some advice, please do not hesitate to contact Kamal, Callie or Alison.